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THE FRAMING

O F

INDIA’S CONSTITUTION

A STUDY

AUSTRALIA

The Law Book Company Ltd.
Sydney: Melbourne: Brisbane

CANADA AND U.S.A.

Oceana Publications, Inc.
Dobbs Ferry, N. Y.

NEW ZEALAND

Sweet & Maxwell (N. Z.) Ltd.
Wellington

U.K.

Sweet & Maxwell Ltd.
London

THE FRAMING

INDIA’S CONSTITUTION

A STUDY

THE PROJECT COMMITTEE

Chairman
B. SHIVA RAO

Members

V. K. N. MENON J. N. KHOSLA
K. V. PADMANABHAN C. GANESAN
P. N. KRISHNA MAN!

Chief Research Officer
SUBHASH C. KASHYAP

Research Officer
.„.N. K,„. N. IYENGAR

THE INDIAN INSTITUTE OF PUBLIC ADMINISTRATION

NEW DELHI '

Distributors

N. M. TRIP.ATHI PRIVATE LTD,

BOMBAY

FIRST PUBLISHED 1968

Companion Volumes

THE FRAMING OF INDIA’S CONSTITUTION
SELECT DOCUMENTS
In four volumes

PRINTED IN INDIA

THE MANAGER, GOVERN®MENT OF INDIA PRESS, NASIK

19 6 8

1?0,1845-.PMI|/6S, MINISTER'S HOUSE

NEW DELHI

August 6, 1963,

My dear Shiva Radj

Your letter of the 6th^ I think
the work you are doing in connection with
the Constituent Assembly will be of
enduring inportance, I wish you success
in it.

Yours sincerely,

Shri B, Shiva Rao,
85 Lodi Bstate,
Hew Delhi 3.

TTMH ^

PRIME MINISTERS HOUSE
NEW DELHI

Circuit House,
Delira Dun,

May 24, 1964,

My dear SMva Rao,

T o 1 letter of the 19th may.

on™ Sudv "*? working

I =«rs this
Study will be very helpful,

tn If T^? mj writing a foreword
so definitely promise to do

stage. But I shall try to
send you a foreword later in this year.

Yours sincerely.

Shri B. Shiva Rao,
85* Lodi Estate,
New Delhi 3.

FOREWORD

Rashtrapatj Bhavam,
New I)ELiti-4.

January 1, 1966.

The worn of tlxe Constituent Assembly ana
the drawing up of India’s Constitution, occupies
a pre-eminent place in the recent history of India,
For the first time, a comprehensive and an
objective study has been made of this subject in
all its facets. We are indebted to Sri B.Shiva Rao
and his colleagues who have laboured to produce
these five volumes, which forma rich store-house
of source neterial for the study of Indian
Constitution.

, Our Constitution has adopted adult suffrage.
It is the most powerful instrument devised by man
for breaking down social and economic injustice and
destroying the walls that imprison men’s mlxids.

This can be achieved only if our peops are aware
of their rights and responsibilities and this is
the task of dedicated leaders to teach the people.

I commend these volumes to students of
politics and public affairs and to research scholars
interested in our Constitution.

{ S .EadhaKrllBliten )

PREFACE

A proposal for a comprehensive study of India’s Constitution
based on much hitherto uncoordinated material in the form of
notes, reports, memoranda and other relevant documents
originated in 1961 with my predecessor (as Director of the
Indian Institute of Public Administration), Professor V. K. N.
Menon. His scheme implied the publication in intelligible
sequence of all the available source material and of an
interpretative account of important provisions of the
Constitution. Such a study, it was felt, would be of general
interest to students of India’s Constitution and furnish research
workers in particular with adequate material on which further
study could be undertaken on various aspects of the
Constitution.

Professor Menon pursued this proposal with his customary
energy. Already in 1960, B. Shiva Rao, who was a member of
the Constituent Assembly, had prepared the groundwork
through a volume containing the papers and memoranda written
by B. N. Rau, Constitutional Adviser to the Constituent
Assembly. In a foreword to this volume. Dr. Rajendra Prasad,
the President of the Assembly and later of the Indian Union,
had observed that it “underlined the urgent need for further
research to bring together the scattered mass of material and
data which influenced and shaped thinking in the Constituent
Assembly and (gave) to our Constitution its present form and
content”. Such research, he had pointed out, was “necessary,
not only for the study of contemporary politics, but for a full
understanding by future generations of our Constitution and
of the interplay of social forces and* attitudes behind the prosaic
work of legal draftsmanship”.

On Professor Menon’s'initiative, the Indian Institute of
Public Administration decided to sponsor the project. A
Committee was formed, with B. Shiva Rao as its Chairman, to
undertake it. The other members of the Committee Were—

apart from Professor Menon — K. V. Padmanabhan, P. N.
Krishna Mani (both of whom were on the staff of the Constituent
Assembly Secretariat from its inception), and C. Ganesan (who
had been associated with constitutional reform in India since
1934). Later in 1964, when I became the Director of the Indian
Institute of Public Administration, I associated myself with the
Committee as a member.

The project had from its start the warm support of President
Dr. Rajendra Prasad who readily permitted full access to all the
relevant documents in his possession. It received constant
encouragement from Prime Minister Nehru, who was kept
informed of the progress of the project at regular intervals.

The publication comprises a set of five volumes — a
volume of study and four volumes of select documents. The
scope and contents of the document volumes are explained in
the preface to each of them. The study volume seeks to
present a lucid and straightforward account of the progress of
the Assembly through the clash of divergent views and interests
that influenced the Constitution-makers at various stages. It
examines in sober perspective the genesis of important provisions
and the alterations made in successive drafts of the Constitution.

In addition, the editor’s historical introduction surveys in
broad outline the background and briefly records the significant
landmarks in the field of Constitution-making during the
previous half-a-century of the national movement for freedom;
and it concludes with a discussion of the British Government’s
plan of May 16, 1946 which set up a Constituent Assembly for
India, and the subsequent developments which resulted in a
radical transformation of the character and task of the Assembly.

No Constitution-making body in recorded history faced
tasks so colossal in their nature or of such complexity, as were
implicit in the establishment of a full-fledged democracy in
India. The achievement of the Constituent Assembly in less
than thirty months, despite major upheavals, including the
assassination of the Father of the Nation almost half-way
through its ‘labours, is a tribute to the courage, persistence and
clear vision that inspired the Assembly.

. No words can adequately egress the debt'of*deep gratitude

vii

that the Committee owes to India’s first, Prime Minister,
Jawaharlal Nehru, for his keen and unfailing interest in the
project from its commencement. His encouragement and
assistance proved invaluable at every stage. There would have
been a foreword from him, had he lived to see the completion
of the study. His last brief letter, received a few hours before
his tragic death, is published as an indication of his abiding
interest.

The Committee is deeply grateful to Dr. S. Radhakrishnan
for writing a foreword to the series before laying down his
office as the President of India.

The burden of supervising and guiding the research project
fell primarily on Shiva Rao, the Chairman of the Committee.
He had exceptional opportunities of being closely associated
with the leading personalities of the freedom movement and
of interpreting developments in the political situation in India
for the last half-a-century; he was thus able to utilize his ripe
judgment, fortified by long experience, in guiding the work
of the Project Committee. He was greatly assisted in this
task by the other members, some of whom were intimately
connected in one capacity or the other with the working of the
Assembly.

Mention must be made of the valuable contributions made
by individual members of the Committee. Professor Menon
continued his active association with the project even after his
retirement. Padmanabhan secured for the Committee several
original and unpublished papers of the Assembly, greatly
enriching the collection of documents. Krishna Mani’s assistance
proved to be of inestimable value. Besides placing at the disposal
of the Committee a large number of valuable documents, he
assisted the Committee with his intimate knowledge of the
day-to-day work of the Assembly and of its different Committees.
The Committee was fortunate in securing Ganesan’s services
which facilitated a speedy completion of the project.

It has been my good fortune to serve on the Committee for
over four years. I know that, the strain on its members, busy
with their normal activities, has been heavy in seeing, these
volumes through all the stages of th6ir preparation. In the

vlll

discharge of they responsibilities they have been moved by a
high sense of public service.

It is ’necessary to make a reference to the useful service
rendered by the staff of the Committee. Dr. S. C. Kashyap, as
Chief Research Officer for part of the time, did commendably
good work in assembhng the papers and drafting some important
chapters and generally managing the project during the period
of his association with the Committee. M. A. Amladi has
supervised the work for the last two and a half years of the
Committee’s labours and performed a difficult task with
devotion and earnestness. N. K. N. Iyengar has been with the
Committee from the beginning and made himself very useful
in many ways. A number of others have been of positive help :
in particular, must be mentioned the proof-readers and the
typists; and M. R. Bhattacharyya and B. G. Gujar of the Rajya
Sabha Secretariat who compiled the index.

Our grateful acknowledgments are due to the Ministry of
Finance, Government of India, for a grant of. Rs. two lakhs
for meeting the expenses of the production and publication of
the work; to the Asia Foundation whose initial grant of
Rs. 62,000, supplemented later by a further grant of Rs. 32,000,
enabled the Committee to make a start; and to the Government
of Australia for the gift of good quality printing paper.

The Committee is grateful to the Rajya Sabha and the Lok
Sabha Secretariats for permission to make use of their libraries;
to the Chief Controller of Printing and Stationery, Government
of India, for his willing and helpful cooperation at all stages
of printing; and also to the Manager and the staff of the
Government of India Press, Nasik, for their quality printing.

Appreciative mention must also be made of Messrs N. M.
Tripathi Pvt. Ltd., Publishers and Booksellers, Bombay, for their
Valuable assistance in ccfordinating the various processes
involved in the preparation of the volumes.

The project has kept both the •Committee and the members

of the staff busy for more than six years. It will be a source of

satisfaction, to all of them and tp myself if these five volumes

succeed to some extent, at least, in achieving Dr. Rajendra

Prasad’s conception of ^n objective study of In(Ma’'s Constitution.
• • ' #

In the execution of the project, the Committee’s constant aim
has been to produce, in Jawaharlal Nehru’s words, “a study of
enduring importance” for students of India’s Constitution all
over the world interested in the functioning of the world’s
largest democracy.

It is the Committee’s earnest hope that the publication of
these volumes would serve as an incentive for further research
in the actual working of India’s Constitution, since it came into
force in 1950, and for a more intensive study of the various
forces now at work in our federal polity.

New Delhi: J. N. KHOSLA

September 26, 1968.

CONTENTS

Page

Hbhru's Letters « . . , I, ii

Foreword by S. Radhakrishnan iii

Preface . • • • . . ^ . v

1. Historical Background . . I

2. Membership of the Constituent Assembly . . » . . . ^ 93

3. Progress of tli3 Constitution through the Assembly ... * 107

4. Preamble . . ^ . . . . . . ■ . . . 119

5. ' The Union and its Territory 133

6. Citizenship . . ... . . ■ . > 149

7. Fundamental Rights— 170

.Introductory . . . . . . 170

Right to Equality (articles 14-18) 179

... .Right to Freedom (articles 19-2.2) . . ' . . « » 211

Right against Exploitation (articles 23-24) - . . . « 249

Right to Freedom of Religion (articles 25-28) . . . . ■ « 257

■ - Cultural and Educational Rights (articles 29-30) . . , „ , 272. '

Right to Property (article 31) ....... 281

Right to Constitutional Remedies (articles 32-35) .... 301

8. Directive Principles of State Policy . ' . . . . . 319

9. The President and the Union Executive ...... 334

10. The Governor and the State Executive ...... . 3S2

! I. . The Attorney-General and the Advocate-General • . « , 408

12. The Conipl roller and Auditor-General . . . . , . 412

13. The Union Parliament . . . , . , . . . 418

14. The State Legislatures . . . . . , . . 445

1 5. Franchise and Elections . « « 459

16. Legislative Powers of the President and the Governors . • , 473

17. The Judiciary — 480

The Supreme Court . . . • * « • . . .480

The High Courts . ... . , . , , , . 49 g „

The Subordinate Courts , ' . . . . 506

18. The, .Indian Stales . . . . » . . . . , , f 511

! 9. The 'Union Territories ' . . . ■ . ... • . ' . . ".'**'558

20. The. 'Scheduled and Tri.bal Areas . .■ . $ 69 *

XIX

Page

21. Relations between the Union and the States — 592

Introductory . • . ® • 592

'Legislative Relations 595

Administrative Relations 641

Financial Relations ......... 649

22. Trade, Commerce and Intercourse within the Territory of India . . 699

23. The Services 708

24 . Public Service Commissions 724

25. Minorities • . 741

26. The Official Language « 78 1

27 . Emergency Provisions ......... 802

28 . Amendment of the Constitution ....... 824

29 . Summing up . . . . . . r . . . . 835

Appendices —

I. Biographical Sketches of the members of the Drafting Committee

and the Chairmen of other Committees 842

II . List of persons who served as members of the Committees of the

Constituent Assembly 846

Bibliography 850

Index . . 853

HISTORICAL BACKGROUND

The first meeting of India’s Constituent Assembly in New Delhi, on
December 9, 1946, was for many of its 296 members the fulfilment of a
long-cherishcd hope. The business before the meeting was purely formal ;
the swearing-in of members and the election of a temporary President to
conduct business until the installation of the permanent head. But the
meeting symbolized an event of unique significance, namely the commence-
ment of the great task of framing free India’s Constitution without outside
interference or pressure.

Ahead lay a number of formidable problems for the Constituent Assembly.
The absence of the members of the Muslim League from the session was
a sharp reminder of the uncertainty of the outcome, even after seven months
of discussion of disputed passages in the British Cabinet Mission’s plan of
May 16, 1946, on the issue of the partition of the country into India and
Pakistan. The future relations with the Princely States, after the withdrawal
of British authority over India, were to be the subject of negotiations. Free
India’s membership of the Commonwealth on the terms of the British offer
was a matter which bristled with complications. These and other problems
placed a heavy responsibility on the members summoned for their first
gathering; nevertheless, in its atmosphere was a sense of achievement after
decades of bitter struggle.

The oldest among the members could recall memories going back by
half a century and more of the earliest efforts at constitution-making. The
Sw'araj Bill of 1895' (attributed by some to Bal Gangadhar Tilak’s direction
and guidance) was notable as a first effort, though it was the handiwork of
a single individual, reflecting the aspirations of that generation.

For two decades thereafter, until the first world war roused to a new
tempo the political aspirations of the people, there was in the Indian National
Congress a growdng de.sire for e.xpression in concrete terms of the country’s
political needs. The emergence during this period of two new Dominions
in the British Empire did not pass without notice. Australia had achieved
Dominion Status in 1900 through negotiations based on a scheme prepared
by a representative constituent Convention and later ratified without change
by the British Parliament. Joseph Chamberlain had observed in introducing

‘Select Documents I, 2, pp. 5-14.

2 '

FRAMING OF INDIANS CONSTITUTION

the measure (the Coixunaiiwealth of Australia Bill) in the House of Commons
on May 14, 1900 f

On the one hand, we have accepted without demur, and we shall ask the
House® of Commons to accept, every point in this Bill, every word, every
line, every clause, which deals exclusively with the interests of Australia. . .
Wherever the Bill touches the interests of the Empire as a whole, or the
interests of Her Majesty’s subjects, or of Her Majesty’s possessions outside
Australia, the Imperial Parliament occupies a position of trust which it is
not the desire of the Empire, and which I do not believe for a moment
it is the desire of Australia, that we should fulfil in any perfunctory or
formal mannerh

Less than a decade later her example was followed by South Africa after
an unsucosssful war with, Britain. Indian thinking was influenced by these
developments into the same constructive mould.

Britain’s initial response to the demand for constitutional progress, defined
by Dadabhai Naoroji, the President of the Congress in 1906, as /‘self-
government or Swaraj like that of the United Kingdom or the Colonies”" was
disappointing. The scheme of reforms (introduced in 1909) associated with
Morley (at that time Secretary of State for India) and Minto, the Viceroy,
provided for little more than the association of an Indian with the
administration at the Centre and some limited powers for the Legislatures.
Even Morley, despite his reputation as a Liberal statesman, was an
imcompromising opponent of responsible government as being impracticable
under the conditions prevalent in India. Speaking in the House of Commons
on December 17, 1908, he said :

If I were attempting to set up a parliamentary system in India, or if it could
be said that this chapter of reforms led directly or necessarily up to the
establishment of a parliamentary system in India, I for one would have
nothing at all to do with it. . . If my existence, either officially or corporeally,
were prolonged twenty times longer than either of them is likely to be,
a parliamentary system in India is not at all the goal to which 1 wouki
for one moment aspi^e^

^ The Congress response to the British offer was modest in its immediate
objective, limited to a demand for an adequate representation of Indians in
the ; Governor-Generars Executive Gouncil and in, the Executive Councils
of the two Provinces of Madras and Bombay, and the expansion of the
Central and Provincial Legislative Councils so as to secure larger and more
effective popular representation than was conceded under the Morely-Minto
scheme. But even at that stage the Congress, split into moderates and
extremists at Surat in 1907, and contr(^Ied for some years by the former,

a Deb., Vol $3, col 56.

^Natesan, f/ie Indian National Congress 2nd edn., (I917), p. S34.

Deb., Yol, m,

HISTORICAL' BACKGROUND

kept clear the vision of the ultimate goal. Led by men like Gopal Krishna
■ Gokhale, the moderates adopted a new constitution for the Congress in,
which the. objects of that organization were defined as ^

the attainment by the people of India of a system of government similar to
that enjoyed by the self-governing members of the British Empire and

■ a participation by them in the rights and responsibilities of the Empire on
equal terms with those membersh

Further progress might have been gradual but for the forces released by the
first world, war , (1914- 191 8) which infused a new vitality into India’s freedom
movement. The sustained, nation-wide campaign for home rule, sponsored
by Annie Besant and Tilak, represented a technique until then unknown
in India. In 1914 the Madras session of the Congress adopted a resolution
asserting India’s claim to equality of status with the self-governing Dominions
in the reconstitution of the British Empire after the war, with a substantial
concession of reform as an immediate step, so as to ensure' ‘hhe recognition
of India as a component part of a federated Empire, in the full and the free
enjoyment of the rights belonging to that status”\

Less than a decade earlier, in 1906, the Aga Khan had led a delegation
of Muslims which sought and obtained the creation of separate electorates
for the Muslims based on religious distinctions. But the Muslim League
now associated itself with the Congress in the demand for self-government
for India within the British Empire. It seems paradoxical in the light of
subsequent events that Mohammad Ali Jinnah (later the founder of Pakistan)
should have moved the resolution in the Congress at its session in 1916
inviting the co-operation of the Muslim League for joint action on all
questions of national interest. These two organizations, representing the
great bulk of educated Indian opinion, decided to evolve a scheme for
India’s self-governraent during the world war acceptable to both parties.

This was the first faint beginning- of the process of formulating a national
demand. The essentials of this scheme were Legislative Councils, to consist
of four-fifths elected and one-fifth nominated members; the me,mbers to be
elected directly by the people on as broad a franchise as possible; and
resolutions adopted ' by the Councils normally to be binding on the executive.
The scheme had the backing of nineteen members of the Imperial Legislative
Council (as the Central Legislature w^as then called)— not all of them
members of the Congress party — who submitted a .memorandum, in 1916 on
similar li,nes to the Viceroy for post-v/ar reforms in India''.

'^.',..The ..im.pact". of -the ■■ first world war -on. India’s . political \asplrat.ionsv. and,'''

Annie Besa,ii,t, E.ow India Wrought for Freedom, p. 470, ^

,5S7., ■ • _

.'^Select ^ 3ocumen^\' 4, pf. 19 - 24 , ,

FRAMING OF INDIANS CONSTITUTION

indeed, on the concept of the status of a Dominion, in the British
’.Commonwealth, was far-reaching. In April 1917 an Imperial War Conference
had . expressed the opinion that the readjustment of the constitutional
relations of the component parts of the British Empire was too important
and intricate a subject to be dealt with during the war; but that it should
form the subject of a special Imperial Conference, to be summoned as soon
as possible after the cessation of hostilities. The resolution passed by the
Imperial War Conference placed on record

their view that any such readjustment while thoroughly preserving all
existing powers of self-government and complete control of domestic affairs,
should be based upon a full recognition of the Dominions as autonomous
nations of an Imperial Commonwealth, and of India as an important portion
of the same, should recognize the right of the Dominions and India to an
adequate voice in foreign policy and in foreign relations, and should provide
effective arrangements for continuous consultation in all important
matters of common imperial concern, and for such necessary concerted
action, founded on consultation, as the several Governments may
delermineh

The effect of these sentiments on India was far-reaching. An
announcement of British policy was made by Montagu, the new Secretary
of State, on August 20, 1917, in the following terms:

The policy of His Majesty’s Government, with which the Government of
India are in complete accord, is that of the increasing association of Indians
in every branch of the administration and the gradual development of
self-governing institutions with a view to the progressive realization of
responsible government in India as an integral part of the British Empires
Neither the British Government nor Montagu meant this statement to
imply self-government for India even at a distant date. Only a month
earlier, Montagu had, in a letter written to the Prime Minister, Lloyd
George, outlined his own views on the issue of Indian self-government :

I definitely expressed my belief that home rule for India is not possible.
I asked that the goal for which we were aiming should be stated to be
a federation of great self-governing provinces and principalities in order
that both the people of India and those who control its destinies might
have the trend of policy explained to them. The policy should be safeguarded
as to time. Before that goal is achieved, many years, and indeed many
generations, will have been spent and different parts of India can be treated
at different speed. I asked for a statement of the goal and some instalment
as an earnest of it. I have not the slightest intention of urging my
colleagues if I become a member of your Government to embark upon
precipitate action. I should not dream of suggesting touching the great

C. Banerjee, Indian Constitutional documents, 2nd ed., Vol. II, p. 325.
Report on Indian Constitutional Reforms (Montagu-Chelmsfprd Report), para 6.

HISTORICAL BACKGROUND

fabric of the Government of India without careful ^vestigationl

The approach was so cautious that, acting against the opinion of. the-
CJovernment of India and Montagu himself, the British Cabinet® decided' to
avoid the use of the word ‘‘self-government” as the goal of British policy
in India and used the phrase “responsible government” instead^ Nevertheless,
the Declaration of August, 1917, marked a clear departure from Motley’s
earlier dictum in the previous decade that India could never aspire .to
responsible government.

In a report of some significance (officially described as the-
Montagu-Chelmsford Report) the authors expressed the hope that ' India’s
connection with the Empire would be endorsed by the wishes of her people-
but on a new basis. Her progress during a century of political experiment
had confirmed them in their view that with power transferred to the people
of a Domioion, their attachment would become the stronger to the Empire
which comprehended them in a common bond of union. The existence
of distinctive national cultures, far from weakening such a bond, could
(in their view) strengthen it on the basis of a Commonwealth. The authors
of the report visualized India’s ultimate destiny as

a sisterhood of States, self-governing in all matters of purely local or
provincial interest, in some cases corresponding to existing provinces, in
others perhaps modified in area according to the character and economic
interests of their people. Over this congeries of States would preside a
central government, increasingly representative of and responsible to the
people of all of them ; dealing with matters, both internal and external,
of common interest to the whole of India ; acting as arbiter in inter-State
relations, and representing the interests of all India on equal terms with
the self-governing units of the British Empire^.

The Princely States would have an honourable place in such a structure:
not disappearance through accession or absorption, but through the
dedication of their peculiar qualities to the service of the country for
certain common purposes, without, however, loss of individuality.

The immediate reaction of Indian opinion to the Montagu-Chelmsford
Reforms, with a strictly limited field of responsibility in the Provinces
and a completely bureaucratic set-up at the Centre, was one of great
disappointment. All the hopes raised by President Wilson’s slogan of'
“self-determination” faded away into disillusionment. Even so, India might'
have pursued the course set for her without seriously challeiig,ing British
autho'rity, but for several events which took place about this time, and
which stiffened nationalist seotiment in its opposition to British rule. Tlie
most,, important of these was the harshness of martial ,law adniinisf ration-'

D. Waley, Edwm Moniagu, p. 131. ♦ ; -

p. 135. * ;

^Report OH' Indian Constitutioml Reforms (Montagu-IDbelmsford,' Repo,rt), paia . 349.

framing of INDIANS CONSTITUTION

in the Punjab and massacre of several hundreds of persons at Amritsar
in April 1919. The horrors of martial law imposed on the Punjab brought
about a radical change in the temper of the people. Even so, Gandhi,
an ardent follower of Gokhale in his political views, was able to prevail
on his colleagues in the Congress to follow the path of moderation.
It was entirely due to his personal powers of persuasion that at the Congress
session held in Amritsar in December 1919 a resolution was adopted which
while characterizing the reforms as “inadequate, unsatisfactory and
disappointing”, neverthelesis committed that organization to a policy
of cooperation. The resolution said :

Pending such introduction (of full responsible government) this Congress
trusts that, so far as may be possible, the people will so work the Reforms
as to ensure an early establishment of full responsible government and this
Congress offers its thanks to the Rt. Hon’ble Montagu for his labours in
connection with the Reforms*.

In the course of the next six months, however, the Congress attitude and
in particular the attitude of Gandhi himself underwent a radical
transformation. The two causes for this change were, first, the Peace Treaty
with Turkey, published in May 1920, and, second, the publication about
the same time of the report of the Hunter Committee, appointed by the
Governor-General of India in September, 1919, to enquire into the Punjab
disorders. The resentment aroused was so widespread that it was considered
necessary to hold a special session of the Congress in September 1920.
Gandhi, who had by this time become the unchallenged leader of the
freedom movement, also became the uncompromising opponent of the
continuance of British rule in India, and, giving up entirely his attitude
of cooperation, he evolved the policy of non-violent non-cooperation. The
resolution adopted at the special Congress session in Calcutta in September
1920 referred to the Khilafat issue. The grievance of the Muslims v/as
that the Sultan of Turkey, who as the Khalifa, was the religious head of the
Muslims, was subjected to undue humiliation by the Allied Powers— Great
Britain, France and the United States. The resolution also referred to
the Punjab martial law administration, and affirmed that both the Indian
and the British Governments had grossly neglected or failed to protect the
innocent people of the Punjab and punish officers guilty of unsoldierly and
barbarous behaviour. The resolution then went on to say that the only
effective means to vindicate national honour and to prevent a repetition
of similar wrongs would be the establishment of Swaraj; and that the course
left open for the people of India to adopt was a policy of progressive non-
violent non-co-operation inaugurated by “Gandhil

ipattahhi Sharamayya, The History of the Indian National Congress (1885-1935).
Vol. I,^). 180.

%id., pp. 189-203.

HISTORICAL BACKGROUND

Tlie country was in no mood after this harrowing experience of martial
law to accept the assurance of a royal proclamation that the new Constitution
(the Government of India Act of 1919, which conceded an ^element of
responsibility in the provincial field) “points the way to full representative
government hereafter”; and even that “the control of her domestic concerns
is a burden which India may legitimately aspire to taking upon her own
shoulders”*. The time-factor was for the leaders of the freedom movement
of primary significance. All progressive elements in India were impatient
with the implication in the statement in the royal proclamation that “the
burden was too heavy to be borne in full until time and experience had
brought the necessary strength”. The view that the pace and the measure
ot each advance were to be decided by Britain alone before the next step
of political reform could be sanctioned evoked vigorous opposition. The
phrase “Swaraj” used officially for the first time in the King’s message® read
by the Duke of Connaught in inaugurating the new Indian Legislature
under the Reforms in 1922 sounded hollow to his Indian listeners.

Even without the shock of the Amritstar tragedy, post-war events would
have brought into sharp focus the contrast between India’s domestic position
and her external status. In the latter sphere she had advanced in some
respects to a position of equality with the self-governing Dominions: her
membership of the League of Nations and of the Imperial Conference
inevitably served as a reminder of the urgency of the need for a swift advance
to full-fledged Etominionhood. In a letter to Chelmsford, Montagu gave an
account of the manner in which India came to be treated in the same way
as the Dominions in the Imperial War Cabinet and at the Peace Conference.
He referred to the “profound, irretraceable changes that have been made
in the constitution of the British Empire during the last few months”. At
the Peace negotiations India’s representatives, Sinha and Bikaner, became,
full members of the War CabLnet. At the Inter-Allied Conference on
matters concerning Britain and the Dominions, Montagu, Sinha and
Bikaner had the same rank as the Dominion delegations. Montagu observed
as regards India :

Ex-pro-consuls and others are holding up their hands with horror at any
substantial efforts towards self-government, and at the same time we have
gone — shall I say lightly ? — into a series of decisions which put India,
so far as international affairs are concerned, on a basis wholly inconsistent
with the position of a subordinate country. Her status has soared far more
rapidly than could have been accomplished by any of our reforms, and
this trend is strengthened by the Prime Minister’s appointment to a
parliamentary position of Lord ■•Sinha (as Under-Secretary of State for
India)’.

/'Indian Annual Register, 1921, Vol. I, Part II, p. ii.

1922, Vol. I, p. 108.

®S. D. Waiey, Edwin Montagu, pp. 193-4.

MaMing of India's constitution

• Gta ttie other hapd* responsibility for administration in the domestic
sphere was seriously circumscribed by constitutional restrictions, presenting
a contradicslion which would not last long.

;■ Differences; developed within the Congress on the tactics to be adopted
in- regard to the Government of ' India Act of 1919; but the first general
elections were boycotted by the Congress under Gandhi’s leadership and
as mass movement of non-violent non-co-operation initiated by him gathered
impressive support. But three years later, chastened by experience, an
influential wing under Motilal Nehru and C. R. Das decided in 1924 to
contest the second general elections.

Meanwhile, outside the Congress was developing a carefully planned,
constructive effort sponsored by Annie Besant and T'ej Bahadur Sapru
resulting in a constitutional scheme entitled ‘The Commonwealth of
India Bill”'. Its starting point was Mrs. Besant’s statement in 1919 before the
Joint Select Committee on the Government of India Bill that India could
not be satisfied for all time with a Constitution framed for her at
Westminster.

From 1921, for the next three years, representatives of different parties
(but not including the Congress) participated in committees on different
aspects of the Constitution. On the completion of their labours a National
Convention, again without representatives of the Congress, met at Kanpur
to finalize the draft. The Bill had its first reading in the House of Commons
in 1926, sponsored by George Lansbury, a member of the British Labour
Party’ls executive, though only as a private member’s Bill

Gandhi and the Congress as a whole did not associate themselves with
this measure. But in an article on “Independence” in his weekly Young
India in January 1922, even while the scheme was in its formative stage,
he had observed :

Let us see clearly what Swaraj together with the British connection means.
It means undoubtedly India’s ability to declare her independence if she
wishes. Swaraj, therefore, will not be a free gift of the British Parliament.
It will be a declaration of India’s full self-expression. That it will be
expressed through an Act of Parliament is true. But it will be merely a
courteous ratification of the declared wish of the people of India, even
as it was in the case of the Union of South Africa. Not an unnecessary
adverb in the Union scheme could be altered by the House of Commons.
The ratification in our case will be of a treaty to which Britain mnli be a
partyl

The Commonwealth of India Bill was notable as the first example of a
comprehensive measure giving constitutional shape to India’s political

Tor a detailed account of the National Convention and the main provisions of
the Conimonwealth of India Bill, soc Select Documents I, II, pp. 43-8,

^Young India, January 5, 1922.

Historical background

aspirations. To strengthen the movement in favour of freedom, a resolution
was moved by an active supporter of the Bill, T. Rangachariar, in the
Central Legislative Assembly on February 5, 1924, callii^ on the

Government to take the necessary steps (including the appointment of a
Royal Commission) for revising the Government of India Act of 1919 so as
to secure for India full self-governing Dominion Status within the British
Empire and autonomy in the Provinces’.

The British Government’s attitude was not one of outright rejection :
in the debate Malcolm Hailey, the main spokesman for the Government,
referred to difficulties in giving effect to tlie resolution. Many interests
(he observed) would be involved in the consideration of the problem,
particularly the Indian States and British commercial interests. Moreover,
the British Government was committed by its pronouncement of August
20, 1917 to “the gradual development of self-governing institutions with a
view to the progressive realization of responsible government in India”.
Hailey drew a distinction between responsible government and self-government
and maintained that the introduction of self-government was not at the
time part of the British Government’s policy.

On specific points arising out of the resolution the British Government
sought clarification : (1) Was Dominion self-government to be confined to
British India only or to be extended to the Indian States; and under what
terms were they to come in? (2) Were they to be dependent on the Crown
or to accept the control of the new Government responsible only to the
Indian Legislature, instead of a Government responsible to the British
Parliament ? Some kind of federation (Hailey believed) was inevitable as the
ultimate objective to be kept in view. Again, no conception of full Dominion
self-government was possible which retained in the hands of an authority
other than the Dominion Legislature itself the protection of minority
communities.

The debate gave an opportunity to Motilal Nehru, as the leader of the
Swaraj Party in the Central Legislative Assembly, to clear the ground for
India’s progress towards the status of a Dominion. The minimum demand
of his party (he declared) was the summoning “at an early date of a
representative Round Table Conference to recommend, with due regard
to the protection of the rights and interests of important minorities, the
scheme of a constitution for India”.

The dissolution of the Central Legislature was under his plan to follow
the preparation of such a constitution, so that a newly-elected Legislature
might give its approval before the submission of the scheme to the British
Parliament for its sanction. The "very basis of the Government of India
Act was, in Motilal Nehru’s view, bad ; namely, that the British

Parliament and its agent, the Government of India, were entitled to

« '

A . Deb ., (1924), Vol. IV, Pt I, p. 221.

FRAMING OF INDIA’S CONSTITUTION

satisfaction before r^ecommending a further advance. The problem of the
Indian States coming into the structure of an all-India government was
contingent qn the results of negotiations with them. Motilal Nehru observed
in the course of the debate :

We have come here to offer our co-operation, non-co-operators as we are,
if you will care to co-operate with us. That is why we are here. If you
agree to have it, we are your men ; if you do not, we shall like men stand
upon our rights and continue to be non-co-operators.

'There was thus little common ground on the fundamental basis of the
positions as expounded respectively by the spokesmen of the two sides.
The Indian leaders’ assertion of India’s right to make her own constitution
without reference to the British Parliament was a view which the British
Government declined to accept. Nothing (Hailey pointed out in his reply)
either in political equity or in the history of the Dominions could justify
the claim that India should frame her own constitution without any other
reference to the British Parliament than the demand that it should at once
be ratified'. He added:

If it is really intended that this Conference should not be one to find a
remedy for the problems which beset our future but should only ratify the
demands of himself (Motilal Nehru) and his friends for immediate self-
government, then I say it is not a conference in which any representative
of the British Crown could or would take part.

Motilal Nehru’s proposal was carried by 76 votes to 48; but the opponents
consisted only of the entire bloc of 26 official members, the representatives
of British commerce and a number of members nominated by the
Government’.

Meanwhile, developments In Britain produced far-reaching reactions in
India. After the installation in office of the first Labour Government in
Britain in 1924 a significant shift occurred in Britain’s attitude; Ramsay
MacDonald (the Prime Minister) observed: “Dominion status for India is
the idea and the ideal of the Labour Government”. In the following year,
the Labour Party, by that time out of office, adopted at its annual conference
a resolution recognizing “the right of the Indian people to self-government
and self-determination’”. The conference welcomed the declarations of
representative Indian leaders in favour of free and equal partnership with
the other members of the British Commonwealth of Nations.

Quick to respond to this sentiment, Motilal Nehru through a resolution
in the Central Legislative Assembly urged the British Government to make
a declaration in Parliament embodying certain radical changes in the
constitutional machinery and the administration of India. Iffie resolution

'Jinnah intefjected at this point: “Let us create one.”

“L. A. Deb. (1924), Vol. IV, Pt. I, pp. 3*19-400; 518-82; 709-69.

’H. ftessel Tiltman, James Ramsay MacDonald, p. 249.

HISTORICAL BACKGROUND

was ..passed by 72 votes against 45. The. main pointS' of his demand, were ;

(a) the .Government of India tO' be responsible to the l^ndian Legislature ;

(b) iiationalizatioii of the Indian army within a reasonably short §nd definite
period of time, the Goveroor-Generai nnd the Commander-iii-Chief being
assisted in the transition period by a Minister responsible to the Legislature ;

(c) the Central and Provincial Legislatures to consist entirely of members
elected on as wide a franchise as possible ; (d) the- principle of responsibility
of the Central Govermnent to . the Legislature to be subject to certain
reservations to be in force for a transitional period, during which residuary
powers would be vested in the Governor-General for the control of. defence,
and foreign and political affairs for a fixed term of years; (e) the Indian
Legislature, after the expiry of this fixed term of -years, to have full . power
to make such amendments , in the -Constitution from time to time as might
appear iiecessa.ry or desirable.

The resolution reiterated the earlier demand and urged the Gover.nment
of India to take steps to constitute, in consultation with the Central
Legislative Assembly, a Convention,, a Round Table Conference -or other
suitable agency adequately representative of all Indian, European and
Anglo-Indian interests, to frame, with due regard to the interests of minorities,
a detailed scheme for the prior approval of the Legislative Assembly before
submission to the British Parliament for adoption as a statute. Motilal Nehru
observed :

We are making this offer to you as one that has been agreed upon by all
the Nationalists and I must emphasize the fact that it is only because it is
in the nature of an offer for a settlement that it has been adopted. It is
an offer by which the Swaraj Party as a whole is as much bound as the
other nationalists in this House or outside.

It was clear that the procedure adopted earlier in the cases of Australia
and South Africa had influenced the Swaraj Party’s leader in formulating
his policy. He referred to Joseph Chamberlain’s House of Commons speech
on Australia in 1900. A significant supporter of the proposal was Jinnah who
observed in his speech :

India is not a nation, we are told. We were a people when the g,reat
war was going on, and an appeal was made to India for blood and money...
We were a people when we were asked to be a signatory to the Peace
Treaty in France. We are a nation when we beco,iiie a member of the-
League of Nations to which we made a substantial contribution. We are
a nation or a people for the purpose of sending our representative to
the Imperial Conference. We are .your partners, but we are not a nation.

, We are, not a people, nor a na|ion,when we ask you for a substantial
advance ■ towards the , establishment of responsible government and
parl!ame.!itary institutions in our own countryk

FRAMING OF INDIANS CONSTITUTION

^ M'otilal Nehru and the Congress were not content with making these
proposals in the dentral Legislative Assembly. Speaking in Parliament,
Birkenhead^ the Secretary of State for India, had several times thrown out
a •challenge that it was for Indians to get together and produce a generally
acceptable constitution. “Let them produce a constitution which carries
behind it a fair measure of general agreement among the great peoples of
India” he said on July 7, 1925' : and he repeated this again when on Noveinber
24, 1927, he spoke in the House of Lords announcing the appointment of
the Simon Commission". The appointment of the Simon Commission
provoked universal resentment in India. The exclusion of Indians from that
body was widely regarded as an insult and an affront, and indicative of the
attitude of Birkenhead and the Conservative Government not to associate
Indians with decision-making processes in the matter of political and
constitutional advance in India. The Congress at its Madras session of 1927
condemned the appointment of the Commission and adopted all measures
for boycotting it; and in the same session the Congress, in answer to Birken-
head’s challenge, authorized its Working Committee to confer with other
similar committees appointed by organizations, political, labour, commercial
and communal, to draft a Swaraj Constitution for India".

Representatives of twenty-nine' organizations met for a meeting at
Delhi on February 12, 1928. The first major hurdle was a controversy over
the objective of the proposed Constitution, some members favouring the
Dominion form of government, while others insisted on complete independence.
Ultimately a compromise formula was evolved to include both view-points.
It was felt that Dominionhood had come to mean something indistinguishable
from independence, except for the link with the Crown. The proposal to

^Indian Quarterly Register, 1925, Vol. I, p, 344.

mid,, 1927, Vol. 11, p. 70.

^Select Documents I, 14(ii), p. 56.

accordance with the resolution of the Madras Congress (1927), the Congress
Working Committee invited the following organizations:

(1) The National Liberal Federation, (2) the Hindu Mahasabha, (3) the All India
Muslim League, (4) the Central Khilafat Committee, (5) the Central Sikh League,
(6) the South Indian Liberal Federation, (7) the All India Trade Union Congress,
(8) the General Council of All-Burmese Associations, (9) the Home Rule League,
(10) the Republican League, (11) the Independent Party in the Central Legislative
Assembly, (12) the Nationalist Party (also in the Assembly), (13) the Indian States’
Subjects’ Association, (14) the Indian States’ Subjects’ Conference, (15) the Indian
States’ Peoples’ Conference, (16) the Anglo-Indian Association, (17) the Indian
Association of Calcutta, (18) the Parsi Central Association, (19) the Zoroastrian
Association, (20) the Parsi Rajkeya Sabha, (21Vthe Parsi Panchayat, (22) the All-India
Conference of Indian Christians, (23) the Southern India Chamber of Commerce,
(24) the Dravida Mahajana Sabha, (25) the Landholders’ Association of Oudh, Agra,
Bihar, Bengal ^nd Madras, (26) the Bombay Non-Brahman Party, (27) the Nationalist
Non-Brahman Party, (28) the Communist Party of ^Bombay, and (29) the Bombay
Workers’ and Peasants’ Party.

HISTORICAL BACKGROUND

'adopt the formula of full responsible government was, therefore, accepted
with a clear understanding that those who believed in independence would
have full liberty to work for it.

The conference also adopted resolutions on the redistribution uf Provinces,
electorates and reservation of seats. A committee was appointed by the
conference with instructions to report on such subjects as a bicameral or
a unicameral constitution; franchise; a declaration of rights; the rights of
labour and the peasantry; and the future of the Indian States. The labours
of this committee came up against obstacles; and in a meeting held in Bombay
in May 1928 the conference adopted a resolution appointing another
committee with Motilal Nehru as chairman to consider and determine the
principles of the Constitution of India, after giving the fullest consideration
to the Congress resolution on communal unity as well as the resolutions and
suggestions made by other parties and organizations'.

The Motilal Nehru Committee strongly objected to the maintenance of
separate or communal electorates as a hindrance to the minority concerned.
It favoured the reservation of seats for minority communities in some
Provinces under a system of mixed or joint electorates, as an inevitable
compromise, for a period of ten years.

The committee dealt at length with the relations between British India
and the Indian States. At that time the problem of Indian States was being
examined in all its aspects by an official committee presided over by
Harcoiirt Butler. The Motilal Nehru Committee had before it the suggestion
for an all-India federation, though the attitude of the Princes was still in
some doubt. It adopted the line that

It would be a most one-sided arrangement if the Indian States desire to join
the federation, so as to influence by their votes and otherwise the policy
and legislation of the Indian Legislature, without submitting themselves to
common legislation passed by it. It would be a travesty of the federal
idea. If the Indian States would be willing to join such a federation, after
realizing the full implications of the federal idea, we shall heartily welcome
their decision and do all that lies in our power to secure to them the full
enjoymeiit of their rights and privileges. But it must be clearly borne in
mind that it would necessitate, perhaps in varying degrees, a modifleation
of the system of government and administration prevailing within their
territories*..

The most significant' conclusion of the Butler Committee, that
'^pa,ramountcy must remain paramount”, had not officially emerged during
the '-.d'eMberations of the M'otilal Nehru Committee. But enough was known
of ''the trend'' of official opinion to» justify the assuniption that neither the
British'\, 'Government ,.iior its agent, the Govermii,ent ' ' of India, would

t ,

' ^Indian Qimrierly .Register, 1928, ¥ol. I,*pp. 13-4,

FRAMING OF INDIA’S. CONSTITUTION

countenance the idea that the subject of relations with the Indian States
would be handecf over to a responsible government at the Centre.
The Nehru Committee, laid down, therefore, that in regard to the Indian
States

the plain fact ought not to- be overlooked that the Government of India as a

. Doni,inion will be as much the King’s Government as the present
Government of India is, and that there is no constitutional objection to the

. Dominion Government of India stepping into the shoes of the present
Government of Indian

Another factor weighed considerably with the Princes. They had good reason
to be disturbed by a letter wTitten in 1926 by • Reading ' as Viceroy to the
Nizam of Hyderabad claiming for the Crown the unilateral right to interpret
the treaties governing relations with the Princely States.

The relevant passage in Reading’s letter was as follows :

The sovereignty of the British Crown is supreme in India, and therefore
no Ruler of an Indian State can justifiably claim to negotiate with the
British Government on an equal footing. Its supremacy is not based only
upon treaties and engagements, but exists independently of them and, quite
apart from its prerogative in matters relating to foreign Powers and policies,
it is the right and the duty of the British Government, while scrupulously
respecting all treaties and engagements with the Indian States, to preserve
peace and good order throughout India. . . The right of the British
Government to intervene in the internal affairs of the Indian States is
another instance of the consequences necessarily involved in the supremacy
of the British Crown. , . The varying degrees of internal sovereignty which
the Rulers enjoy are all subject to the due exercise by the Paramount Power
of this responsibilityl

These apprehensions did not, however, have the effect of bringing the
Princes and the British Indian poHtical parties together, even to a limited
extent.. Relying always on the protecting arm of the Paramount Power,
the Rulers of Indian States generally speaking reacted strongly against forces
operating in favour of democratic administration; and this created an ever
widening gulf between, them and . political parties like the Congress.
Developments within the Congress and in particular the demand for, India’s
complete independence in 1927, increased the apprehensions of the Princes,
wliG; adopted a resolution early in 1929 (in the Chamber of Princes)
that—

^ the recent pronouncements of a section of B,ritish Indian
politicians ' indicative of a diiff towards complete independence, they (the
Princes) desired to place on record th|t in the light of mutual obligations
arising from their treaties and engagements with the British Crowm, they

Undian Quarterly Register, 1928, Vol. I 5 p, 36.

HVhke Paper on Indian States, pp, 149 - 50 .

HISTORICAL BACKGROUND

, could not assent to any proposals- having for liieir object the adjustment
of equitabie relations between the Indian States and®BFitish India unless
such proposals proceeded upon , the initial basis of the British
corniection.

: The installation fo-r a second time of a Labour Governiiient in, Britain in
1929, though again as a minority administration, with Ramsay MacDonald
as the Prime Minister, marked a new phase in Indo-British relations. On the
eve., of his assumption of office, he had declared at the CoiTi,mo-nwealth
Labour Confere,iice that India’s attainment of .Dominion Status was imminent.
MacDonald’s reference was in the following terms :

I hope that within a period of months rather than years, the,re will be a
new Do, minion added to the Commonv/ealth of our nations, a Dominion
that will find self-respect as an equal within ■ this Co,mmonv¥ealth. I refer
to India",

III

One of the first steps taken by the Labour Government was to invite the
Viceroy, Irwin (later Halifax), to London for a discussion of the policy to
be pursued in regard to India. Irwin was authorized to say on his return
to India that in the judgment of the British Government

it is implicit in the declaration of August 20, 1917 that the natural issue of
India’s constitutional progress as there contemplated is the attainment of
Dominion Status^

Motilal Nehru’s suggestion of a Round Table Conference was accepted in
principle; but an essential point of difference lay in the proposal that India’s
representatives would be nominated by the British Government, not elected
by a popular vote. The Viceroy’s declaration failed to carry conviction with
left-wing elements in the Congress who, under Jawaharlal Nehru’s lead,
comm,itted the organization to complete independence at its session in Lahore
in December, 1929''.

The first session of the Round Table Conference met in London in 1930.
Etespite the absence in prison, for participat,ioii in the civil disobed,ience
movement, of Gandhi and the Cong.ress leaders, an atmosphere of hope' of.
a settkment was created by its- proceedings. Ramsay .MacDonald in
inaugiirating .the conference sa.id :

The atlendance of representatives -of the Dominion Governments Is an earnest
, . of -.the interest and goodwill with which the sister-states in the G-ommonwcalth

... of Nations will follow our labours. . . Nor .is it without signifi-ca.nce that

^Indian Quarterly Register, 191%., 'Vo,l, -IT,.- p. 293.

^Gwyer and Appadorai., Speeches and Documents {ui the Imlkm Constituii&n,

-■ 227-S.

FRAMING OF INDIANS CONSTITUTION

■ we, who, though not of India, also seek India’s honour, are drawn from all
three parties m*this Parliament^

Important delegates like Tej Bahadur Sapru, V. S. Srinivasa Sastri and
Mohammad Ali Jiimah referred to British pledges as calling for immediate
fulfilment. Pointing to the presence of Dominion Prime Ministers, Jinnah said.
I am glad that they are here to witness the birth of a new Dominion of
India which would be ready to march along with them within the British
Commonwealth of Nations^

The spokesmen for the Rulers — ^Kashmir, Bikaner and Bhopal — ^not only
agreed to an all-India federation but made responsibility at the Centre a
condition for the entry of the States.

The British Prime Minister made a policy statement at the end of the
conference on January 19, 1931, in the following terms :

The view of His Majesty’s Government is that responsibility for the
Government of India should be placed upon Legislatures, Central and
Provincial, with such provisions as may be necessary to guarantee, during
a period of transition, the observance of certain obligations and to meet
other special circumstances, and also with such guarantees as are required
by minorities to protect their political liberties and rights.

In such statutory safeguards as may be made for meeting the needs of
the transitional period, it will be a primary concern of His Majesty’s
Government to see that the reserved powers are so framed and exercised
as not to prejudice the advance of India through the new Constitution to
full responsibility for her own governmenf.

MacDonald coupled it with a personal assurance which went even further :
Finally, I hope and I trust and I pray that by our labours together, India
will come to possess the only thing which she now lacks to give her the
status of a Dominion amongst the British Commonwealth of Nations — what
she now lacks for that — the responsibilities and the cares, the burdens and
the difficulties, but the pride and the honour of responsible self-govenimeiif ,
The immediate reaction to this statement was a strengthening of the
impression that India would be endowed with a constitution that would mean,
except for a few reservations of a temporary character in regard to defence
and foreign affairs, full responsible government, and that even the removal
of these reservations would rest with the Indian Federal Government of
the future.

At no point in India’s freedom campaign did success appear so near as
immediately after the termination of the first Round Table Conference early
in 1931. MacDonald’s declaration to the final meeting was obviously

, , #

^Indian Annual Register, 1930, VoL II, pp. 288-9.

^Indian Round Table Conference (Nov. 1930--Jan. 1931), Sub-Committee Reports,
Conference Resolution and Prime MMstefs statement, p. 80.

Hbdi., p. 83,

HISTORICAL BACKGROWD

lEtended to conciliate Gandhi and his colleagues and bring the main section
of the Congress into the subsequent deliberations of* the Round Table
Conference. Negotiations were opened in India between the Viceroy and
Gandhi, resulting in the famous Irwin-Gandhi pact, of which the two main
features were : (1) civil disobedience to be called off by the Congress; (2) the
Congress to participate in the second session of the Round Table Conference-
There was also a clear understanding on the basis of which discussions were
to take place :

As regards constitutional questions, the scope of future discussion is stated,
with the assent of His Majesty’s Government, to be with the object of
considering further the scheme for the constitutional Government of India
discussed at the Round Table Conference. Of the scheme there outilncd
federation is an essential part; so also are Indian responsibility and
reservations or safeguards in the interests of India, for such matters as
for Instance, defence ; external affairs ; the position of minorities ; the
financial credit of India and the discharge of obiigationsl (The reference
here was to the imposition of such conditions as would ensure the fulhiment
01 the obligations incurred under the authority of the Secretary
of State.)

Tlie prospects of success further brightened in the early stages of the
Second Round Table Conference in the late summer of 1931, wuth Gandhi
as the sole representatives of the Congress. But at this stage in India’s
political fortunes Britain faced a domestic crisis, necessitating a general
election which proved disastrous to the Labour Party.

Undeterred by this sudden transformation in the complexion of the new
Government — MacDonald continuing to be the Prime ■ Minister but in a
predominantly Conservative House of Commons — Gandhi told the Federal
Structure Committee of the Second Round Table Conference on September
15„ 1931 :

India, yes, can be held by sword! 1 do not for one moment doubt the
ability of Britain to hold India under subjection through the sword. But
what will conduce to the prosperity of Great Britain, the economic freedom
of Britain— an enslaved but rebellious India, or an India an esteemed
■ partner to share her sorrows, to take part side by side with Britain
IQ her misfortunes ? Yes, If need be, but at her own will, to fight side by
side with Britain: — ^not for the exploitation of a single race or a single human
being on earth, but it may be conceivably for the good of the whole w^orld r
If I want freedom for my country, believe me, if I can possibly help it, ,1
.do not want that freedom in order that .1, belonging to a nation which
contains one-fifth of the human race, may exploit any other race upon earth,
or .any, single individual. If I want that freedom for my country, I would.

*Gwyer and Appadorai, Speeches and Documents on the Indian ConhiiuHon, Vol.
T, pp. 231-2.' .

„ 3' ■ ■ • ' , ,

FRAMING OF INDIA’S CONSTITUTION

not be deserving of that freedom if I did not cherish and treasure the equal
right of every "other race, weak or strong, to the same freedom. . . I
would love to go away from the shores of the British Isles with the
conviction that there was to be an honourable and equal partnership
between Britain and India'.

At the end of the conference, despite Conservative members occupying
key positions in the new Government, MacDonald was able to repeat the
pledge he had earlier given on behalf of the Labour Government.

Subsequent events, however, gave rise to the fear that in effect the British
proposals would be whittled down. Immediately on the termination of the
conference, there was a debate on India in the House of Commons on
December 2 and 3, 1931, in which not only the Prime Minister but Samuel
Hoare, John Simon, Stanley Baldwin, Winston Churchill and other leading
members took part. Churchill sought to add three general reservations to
the Government’s motion endorsing its India policy ; (a) nothing in the policy
would commit the House to the establishment in India of a Dominion
Constitution as defined by the Statute of Westminster: (b) the policy would
effectively safeguard British trade in and with India from adverse or
prejudicial discrimination; and (c) no extension of self-government in India
at that juncture would impair the ultimate responsibility of Parliament for
the peace, order and good government of the Indian Empire.

In his speech in the Commons debate, quoting Fox (that “men have equal
rights to unequal things”) in support of his view, Churchill maintained that,
though India might have been promised Dominion Status, status applied
only to rank, honour and ceremony".

In a vain effort to conciliate Churchill, the Prime Minister had given the
assurance that the Government’s policy would not bring India under the
Statute of Westminster unless a specific amendment was made to the
Statute in Parliament adding India to the lisf. It was embarrassing for the
Prime Minister later in the same debate to have to shift his position to the
other side under pressure from his former colleagues in the Labour
Government. He assured Clement Attlee (in order to neutralize
the effect of his concession to Churchill), “obviously, the Round Table
Conference will remain, and in the end. we shall have to meet again for a
final review”^

The third and final session of the Round Table Conference, though
promised by MacDonald for a final review, would probably not have been
held but for vigorous protests from men like Tej Bahadur Sapru. When
summoned, it was a much smaller body than its two predecessors, with Gandhi
and several other Congress leaders §gain in detention. It met in an

^Proceedings, Vol. I, pp. 45-7.

C. 260, cols. 1287-9.

TWi, cot 1114.
col. 1120.

HISTORICAL BACKGROUND

atmosphere of increasing suspicion on the Indian side tha^the promises made
at the first and second sessions might not be fulfilled. MacDonald, who had
played a prominent part in the two earlier conferences, was conspicuously
in the background in the third session and did not address the conference
even once in the course of its proceedings.

Despite this sharp setback after the defeat of the Labour Party in the
British general elections of 1931, the positive gains for India in her progress
towards freedom were not negligible. Step by step, in the decade following
the end of the first world war, she had gone forward to secure the right to
frame a Constitution for herself with full Dominion Status as promised
by the Labour Party, and based on an all-India federation of Provinces and
Princely States. Montagu’s dream of the future of a free India, with the
States represented therein, and taking her place in the Commonwealth, had
been brought visibly nearer fulfilment by these achievements-

Immediately, however, the tide seemed to be flowing strongly against India.
Motilal Nehru’s death early in 1931 was a grievous loss at a time when his
wise leadership might have proved decisive in effecting a satisfactory
settlement. The new Viceroy, Willingdon, did not share Irwin’s regard for
Gandhi and refused to conduct any negotiations with him. The Congress
ranks were sharply divided on Jawaharlal Nehru’s policy of socialism as its
main plank. Tlie coalition Government in Britain seemed to react to a
situation in India which, at any rate on the surface, suggested lack of unity
of purpose among the different parties and even within the Congress.

'The full proposals, published in a White Paper' in the early part of 1933,
only deepened India’s misgivings. The safeguards proposed were to be in
“the common interests of India and the United Kingdom” — ^not in the interests
of India alone, as had been laid down in the Irwin-Gandhi pact. Samuel
Hoare, the new Secretary of State, made it clear in a debate on the While
Paper on March 27, 1933, that the White Paper proposals which laid down the
British Government’s policy in relation to constitutional reform in India
did not contemplate self-government but were only another stage in the
continuous bestowal of new instalments of constitutional progress’. This
was a definite repudiation of his predecessor’s (Wedgwood Benn) assertion
at the Second Round Table Conference that the reference in the preamble
to the Government of India Act of 1919, that the British Parliament would
be the sole judge as to the manner and pace of India’s advance to
self-government, was completely out of date.

In the White Paper it was stipulated that the Federation of India would
not come into existence without certain preliminary conditions being fulfilled,
a primary one being that the Rulers of States, representing not less than half
the aggregate population of the States and entitled to not less than half the

‘ White Paper on the Proposals for Indian Constitutional Reform (Comd. 4268).

C. Deb., Vol. 276, col. 698.

FRAMING OF INDU’S CONSTITUTION

seats allotted to tljpm in the federal upper chamber, should have executed
Instruments of Accession. In the Federal Legislature, which was to be
bicameral, the upper chamber was to consist of 260 members, 150 from the
Provinces, 100 from the States and 10 nominated by the Governor-General ;
and in the Lower House 375, 250 elected from the Provinces and 125
appointed by the Rulers of States.

In addition to being solely responsible for India’s defence and external
affairs to His Majesty’s Government and the British Parliament, the
Governor-General was vested with other “special responsibilities” in respect
of important matters, including the prevention of a grave menace to the
peace or tranquillity of India, the safeguarding of the Federation’s financial
stability and credit, the protection of the legitimate interests of minorities
and the public services, the protection of the rights of the States and the
prevention of discrimination against British commercial interests.

At the time of the adoption of the 1935 Constitution, the Princely States
had second thoughts about joining the Federation. With Akbar Hydari
(Hyderabad) as their leader, they stepped up their demand for an unequivocal
declaration that their treaty rights would remain “inviolate and inviolable”
under the Federation. The smaller States represented in the Chamber of
Princes sought other concessions; even after the inauguration of Federation,
the exercise of paramountcy, they urged, should be placed beyond doubt.
Their original sovereignty had become trammelled with the lapse of time
and anything entrusted to the Crown during a period of their tutelage could
not fairly be retained at a time when Federation was conceived in the belief
that Indians could govern themselves.

In assuming this inflexible attitude, the Princes were influenced by a
lawyer, J. H. Morgan who held that the safeguards in the Government of India
Act would prove to be “utterly inadequate”. The Princes were warned
against finding themselves, after their accession to Federation, “caught in
a trap”; their expectations that the enforcement of federal obligations on
a State would remain exclusively with the Viceroy in the exercise of
paramountcy, they were told, would turn out to be a “painful delusion”.
Dominion Status having been promised to India, the safeguards for the rights
and interests of the States in the 1935 Act, he warned the Princes, were
bound sooner or later to disappear, because their maintenance was
incompatible with such status.

On the other hand, there were forces active in India of a reverse nature,
for the extension of popular rights in opposition to the perpetuation of
princely privileges. The representatives of the States’ people summarized
some of their essential needs for inclueion in the 1935 Constitution in the
followiag terms ; (1) election of the States’ representatives to the Federal
Parliament;^ (2) justiciable fundamental rights; and (3) all Central
subjects to be federalized and administered directly by the federal
authorities.

HISTORICAL BACKGROUND

It would be relevant to note at this stage that at a session o£ the Joint
Parliamentary Committee on the White Paper Proposals on August 1, 1933,
Reginald Craddock asked a Muslim deputation led by A. Yusuf Ali to
comment on the scheme outlined by a Cambridge student, Rehmat Ali, for
the establishment of Pakistan. Yusuf Ali’s reply was that it was a student’s
scheme, which no responsible people had put forward. Further questioning
by Craddock invited an intervention from Muhammad Zafrullah Khan (a
delegate to the Joint Parliamentary Committee) who told his colleagues, “We
have already had the reply that it was a student’s scheme and there is
nothing in it.” Yusuf Ali himself added : “We have considered it
chimerical and impracticable’”. Jinnah was not in the picture at all, and
no other Muslim leader had backed the demand for Pakistan at the time
of the inauguration of the 1935 Constitution.

The growth of the Pakistan cult was phenomenal after the first general
elections in 1937, and in three years the political scene in India underwent
a radical transformation. The fact is that in the official world of New Delhi
and Simla the prevalent impression in the pre-election year was that despite
ail the criticisms of the shortcomings of the new Constitution, the soberer
elements in the country would capture the seats of power and authority in
the general elections. But the results of these elections in the early part of
1937 completely upset all official calculations and considerably altered
the outlook of the different political groups, of the Princes and of the British
authorities. The Congress emerged as the largest party in seven Provinces out
of eleven, with a clear majority m five (Madras, the United Provinces, the
Central Provinces and Berar, Bihar and Orissa).

In the Punjab the Unionist Party — ^not the Muslim Leaguei — under the
leadership of Sikandar Hyat Khan secured a majority and he formed a
Cabinet of six Ministers consisting of three Muslims, two Hindus and a Sikh.
In Bengal, Fazlul Huq, the leader of the Praja Party, came to the fore
with a strong tenants’ programme. His plea for the abolition of the
permanent settlement and the release of political prisoners and detenus
brought him and his party much Congress support before and during the
elections.

In the United Provinces (a key province), the unexpected success of the
Congress party” at the polls was due, in large measure, to the solid support
of the peasantry. Suppressed for generations and hard hit by the economic
depression of the early thirties, the peasants had responded with warmth

• '

^Joint Commiitee on Indian Constltiitianal Reform, Session 1932-3, Minutes of
Evidence, , VoL IIC, p. 1496.

^In the United Provinces the forecast of the officials gave' the Congress about 70
seats "out oi a total of 228, while Congress leaders hoped to win 100. ActiialK% the
Congress secured 135 seats and formed a Ministry.

FRAMING OF INDIA’S CONSTITUTION

to the election appeal of the Congress. They felt elated that they had a
share in installing a Congress Government in the Province. They could
go to distpct officers and even to Cabinet Ministers with their complaints
against landlords and their agents without fear of persecution. Socialists
and Communists, taking advantage of the Congress Ministry in office,
campaigned in the rural areas, preaching radical doctrines with impunity.

The performance in the general elections of the Muslim League by contrast
was modest: of 492 Muslim seats in all the Provincial Legislatures, only
109 were captured by League’s candidates. In the Punjab, many Muslim
candidates preferred the platform of the Unionist Party and in Bengal -.’jc
Praja Party’s programme proved more attractive. In the United Provinces
a number of Muslim landlords declined the offer of the Muslim League to
contest the elections on behalf of the League. It is significant that even
after the elections Jinnah’s thoughts were not in the direction of a separate
State of Pakistan. In a public statement shortly after the elections in 1937
he declared, “nobody will welcome an honourable settlement between the
Hindus and the Muslims more than I and nobody will be more ready to help
it”; and he followed it with a public appeal to Gandhi to tackle this question.
The latter’s response was somewhat depressing : “I wish I could do something,
but I am utterly helpless. My faith in unity is bright as ever ; only I see
no daylight but impenetrable darkness and in such distress I cry out to God
for fight”.

The primary fact, mentioned earlier, needs to be stressed that in 1937
there was singularly little support for the establishment of Pakistan. How
then did the Indian situation alter within three years to give this movement
vitality? For an explanation, one must go to the United Provinces, where
the Muslims, who were only 14 per cent of the population, had played an
important part in the political development of the region. Until the general
elections, the relations between the Congress and some of the prominent
Muslim leaders were cordial and even friendly. The Congress Party, though
confident of weakening the landlords’ position and influence in the Provincial
Government and in the Legislature for many years, was not hopeful of
securing a definite majority.

Before the elections, the Congress Party, working on the assumption that
a decisive majority in the United Provinces Legislature was difficult to get,
had a tacit electoral understanding with the Muslim League. This
understanding in fact extended beyond that Province and was designed to
facilitate a working arrangement between the two organizations during the
elections, so as to avoid contests between candidates of the Congress and
those of the Muslim League in several Muslim constituencies. In pursuance
of this understanding the Congress contested only 58 out of the 492 Muslim
seats.

It has already been mentioned that the Muslim League as a political party
did not have much success in the Provinces— the Punjab, Bengal, Sind and the

HISTORICAL BACKGROUND

North-West Frontier Province — where they constituted . majority of the
popiiiatioii. Such success as this organization had in the elections was
mainly in the Provinces where the Muslims were . in a . mincirity. The
Muslim League and the other Muslims, especially in the United Provinces,
were expecting that the Congress would form coalition Ministries consisting
of Muslims drawm from the League and other communal groups. They were
perhaps fortified in this belief by the provision in the Governor’s Instrument
of Instructions :

III making appointments to his Council of Ministers, our Governor shall
ose his best endeavours to select his Ministers in the following manner,
that is to say, to appoint in consultation with the person who in his
judgment is most likely to command a stable majority in the Legislature
those persons (Includlog so far as practicable members of important minority
communities) who will best be in a position collectively to command the
confidence of the Legislaturek

It is true that these instructions did not require the Governor to include
members of minority communities elected through their own communal
organizations. Nevertheless the Muslim League expected that Muslims returned
on the party ticket wuuld be asked to cooperate in forming Ministries. But
the Congress Party in the United Provinces after its success in the elections,
with a membership of 135 seats in a House of 228, decided to form a purely
Congress Ministry. It preferred to exercise the right of forming an exclusively
party government because that was held to be the verdict of the electorate.
A coalition, it was argued, could not “wreck the Constitution from within”—
the avowed object of a section of the Congress.

Nehru and the left-wing elements in the Congress pinned their faith in a
policy of which the main points were :

. . .the Indian people do not recognize the right of any external power or
authority to dictate the political and economic structure of India, The
Indian people will only accept a constitutional structure framed by them
and based on the independence of India as a nation and which allows them
full scope for development according to their needs and desires.

The Convention (the National Convention of Congress legislators) stands
for a genuine democratic State in India where political power has been-
-transferred to the people as a whole. Such a State can only be created
by the Indian people themselves through the medium of a Constituent
. Assembly elected on the basis of adult suffrage, and having, the power ' tO'
determine finally the Constitution of the country^

The formation of purely Congress Ministries appeared to the ' Congress
to;,. be the best under. the circumstaiices from many points- of view. - On

/^N.,- Rajagopaia Aiyangar, The Government of India Act, 1935, p. 'Xiv. ■
■'2Gwyer''-& Appadorai , and Documents on the Indian C onsti tut! on,. ■..'Vot
I, p,':391. ,

FRAMING OF INDIA’S CONSTITUTION

the inclusion of minority members in the Provincial Cabinets, the position
of the Congress was clear and unambiguous. The inclusion of the
representatives of the Muslim League and other communal parties would
have adversely affected the spirit of joint responsibility among the
Ministers, and also weakened the national front, which had to be maintained
at the optimum strength to achieve independence. Preference shown in
the selection of Ministers to persons who clung to communal politics as
against those who had thrown in their lot with the Congress would have
had a disheartening effect on the latter and the fight against communalism
would have received a severe setback. A firm refusal to share power with
the communal parties would avoid this danger, and would also serve as
a warning to the latter that with communal politics they would be eternally
doomed to occupy opposition benches, and that their salvation lay in
coming out of their communal shells.

A further complicating factor w'as Nehru’s “mass contact” programme
to win over the Muslim masses to the Congress creed. Nehru declared
(on March 19. 1937) :

We have too long thought in terms of pacts and compromises between
communal leaders and neglected the people behind them. . . It is for us
now to go ahead and welcome the Muslim masses and intelligentsia in our
great organization and rid this country of communalism in every shape
and form'.

In pursuance of this policy the Congress initiated a “mass contact”
programme with the object of bringing the Muslim voters and the Muslim
masses within the Congress fold. This programme did not however have
appreciable success.

Muslim leaders in the United Provinces regarded the post-election policy
of the Congress and its refusal to form a coalition with the Muslim League
as a breach of faith. Many Muslims even outside the United Provinces
felt that the League’s very existence was being threatened ; and in reply
to the Congress “mass contact” programme the League launched a vigorous
counter propaganda, with emphasis on two issues. It was argued that the
non-inclusion of representatives of the Muslim community in the executive
would necessarily lead to the adoption of policies which would hurt the
interests of the Muslims as a community : it was further argued that the
policies of the Congress would for ever exclude the Muslims from a share
in the executive power unless they gave up the communal platform.

The cry of “Islam in danger” was raised. It was at this time that the
Muslim League further strengthened its propaganda by spreading stories
about the “atrocities” on the part of tfec Congress Governments committed
against the Muslim community. This propaganda had a great effect

'Gwyer Appadorai, 5peec/i« and Documents on the Indian Constitution,
Vol. r, pp. 422-3.

HISTORICAL BACKGROUND 25

among the Muslim masses; the facts that the Governors had a special
responsibility for protecting the legitimate interests of*the minorities, but
had never had occasion to use this special power; and that in all this
propaganda no specific act prejudicial to the Muslim community could
be proved to have taken place, were overlooked. So effective was the
propaganda that in a number of bye-elections in Muslim constituencies
the Congress candidates were defeated. These defeats showed that
Nehru and the Congress had committed a serious tactical error'.

The defeat of the Congress candidates in the bye-elections had a definite
psychological effect. The stock of the Muslim League among the Muslim
masses rose all over India. Other parties which had been defeated in the
elections saw in the Muslim League a rallying point for a combined
opposition to the Congress. Landlords in particular, whether Hindu or
Muslim, fearful of the Congress agrarian programme, naturally turned to
the League for indirect assistance and in return gave it support.

The Muslim League, under Jinnah’s leadership, continued to press its
communal demands based on the theory that the Muslims were a separate
“nation”.

During 1937-1938, correspondence took place between Jinnah and Nehru
and Subhas Chandra Bose, the then Congress President. The demands of the
Muslim League were summarized in three major points :

(1) the Muslim League should be recognized to be the only authoritative
and representative political organization of the Mussalmans of India ;

(.2) the Congress should accept the Communal Award given by the
British Government and cease all opposition to it ;

(3) coalition ministries should be formed in the Provinces and include a
fair share of Muslims who commanded the confidence of the Muslim
members of the Legislatures.

The first of these demands particularly proved quite unacceptable to (he
Congress because thereby the Congress would forfeit its claim to be a
national organization representing all the people of India. The negotiations
for evolving a common front against the British for national independence
thus broke down^

The tension between the Congress and the League grew, and the League
continued to carry on sustained propaganda against the Congress
Governments. The Congress in the United Provinces reflected, more than
elsewhere, left-wing leanings. The Premier (Govind Ballabh Pant) could
not curb, without inviting serious misunderstanding with some of his
own supporters, a campaign for a socialist programme. Obviously, the
liberty which the left-wingers in tl^p Congress enjoyed could not be denied

’Gwyer & Appadorai, Speeches and Documents on the Indian Constitution,
Vol. I, p. 410-20. •

Hbid., pp. U-iii. *

FRAMING OF INDIA’S CONSTITUTION

to Muslim League organizers who made full use erf their opportunities for
their own programme to win the allegiance of the Muslim masses.

The deterioration in Hindu-Muslim relations in the United Provinces
attracted attention from outside. The strength of the Congress, it was felt,
could be challenged with prospects of ultimate success, on the communal
side. A significant consequence of the Muslim League attracting mass
support was that at the end of 1937, the League followed the example of the
Congress set ten years earlier and adopted complete independence as its
creed.

The Muslims were not the only major factor to be considered at
this stage of India’s political development. Princes — even Hindu Princes'—
resentful of the demands for popular reforms in the States and the trouble
stirred up among their people, became markedly sympathetic to the Muslim
League.

Gandhi continued his efforts to reach an understanding with the
Viceroy. He was quoted (by Rajagopalachari) as having said, “I would
die in an effort to prevent (the) tragedy (of a deadlock), but there
must come a time when my efforts will be fruitless”. Nevertheless, he
lent his weighty support to those in the Congress Party who held that
“the Government of India Act of 1935 was an attempt, however limited
it might be, to replace the rule of the sword by the rule of the
majority”.

Nehru and Gandhi viewed the developing situation in India from sharply
divergent standpoints. Nehru harped on his favourite theme that the logic
of events would lead the Congress to Socialism as the only remedy for
India’s ills. He was keen on a National Convention consisting of all the
members of the Provincial Legislatures elected under the new Constitution
and of the members of the All-India Congress Committee to frame the new
Constitution. Gandhi’s view of a Constituent Assembly, on the other hand,
was that the Convention should, instead of frittering away the results of
the success at the polls, adopt a programme to be pursued in the
Legislatures. He said that there was no need for the British to leave
India : “India is a vast country. You and your people can stay comfortably,
provided you accommodate yourselves to our conditions here.”

Meanwhile, in Europe war clouds were gathering ominously in 1938.
The Congress Working Committee adopted in October of that year a
resolution expressing great anxiety over the events as they were occurring
in Europe. At Calcutta in the following summer the All-India Congress
Committee strongly criticized the despatch of Indian troops to Aden and

♦

^On one occasion the Maharaja of Nawanagar (at that time the Chanceilor of the
Chamber of Princes) remarked, in discussing an alliance between the Muslim
League and t%e Chamber for the federal elections: “Why should I not support the
League? Mr. Jinnah is willing to tolerate our existence, but Mr. Nehru wants the
extinction of the Princes”.

HISTORICAL BACKGROUND

the ameodmeiit of the Government of India Act by wliicli, in the event of
war, ail power would be concentrated in the- hands of ' the Central
Government. The amendment, according to the leaders of tlie^ Congress,
created "‘a war dictatorship of the Central Government in India which
(made) Provincial Governments the helpless agents of Iiiiperialisni’'h

Brushing aside the vigorous protests of the Congress and despite' the
Centra! Government's earlier assurance on the subject, more Indian
soldiers were subsequently despatched to Egypt and Singapore without
coiisulting the Centra! Legislature. The Congress Workiog Committee
condemned in August 1939 the Government’s action and called upon the
Congress members of the Central Legislative Assembly to refrain from
attending its next scssionh

Events in Europe were moving fast. After Hiller's attack on Poland, a
major war became inevitable, and early in Septem,ber, 1939, Britain and France
declared war on Gerniany. On ■ the same day Linlithgow, as India’s
Viceroy, issued a proclamation declaring that India too was at war with
Germany. This action was taken without consulting the Central Legislative
Assembly then in session and against the will of the Congress.

Indian leaders were in a dilemma : Gandhi’s advice of iincaiiditioiial
cooperation at the beginning of the war did not commend itself to his
Congress colleagues. For years the Congress had seen in the policy of the
British Government evidence of appeasement of the Axis Powers (Germany
and Italy) and it was not prepared to* adopt Gandhi’s advice without a clear
declaration of Britain’s post-war policy towards India.

An article in the Hindu (an influential daily published in Madras) early
in October, 1939 examined the possibilities of establishing, even within the
limitations of the 1919 Constitution, an Executive Council which could
function more or less as a National Government responsive to popular needs
tliougli not constitutionally responsible to the Legislature. Linlithgow seem-ed
interested in the proposal, but had his misgivings about its practical
usefulness. Moreover, hinted the Viceroy, with ChurcMlI in the Cabinet,
there would' be serious difficulties in securing British approval for it.

The Congress demand at this time was for a speciflc declaration that
Britain should agree to a Constituent Assembly, elected on adult suffrage,
to frame a Constitution for India, with complete freedom, as its basis.
Since the fear had been expressed that it might imply a Hindu majority
10 perpetual power, the Congress was willing to accept that the CO'iistitiition
.must have the support of all important' minorities, particularly the Muslims,
before British ratification of the scheme.

. The , resoluti' 0 .ii.. of the Working •Committee, adopted o.!i' September 14,
1939, invited the 'B.ritish Government to

■ ■^Indian Annual. Register, 1939, Vol. I, pp. 350-1.

■ Vol. II, pp. 214-5. : ' (

FRAMING OF INDIA’S CONSTITUTION

■declare in unequivocal terms what their war aims are in regard to 'democracy
and imperialism; and the new order that is envisaged; in particular, how
■ these aims are- going to apply to India and to be given effect to in the
present^.

Elaborating this demand further, the committee declared in November,

1939:

The committee wish to declare again that the recognition of India’s
independence and of the right of her people to frame their Constitution
through a Constituent Assembly, is essential in order to remove the taint
of imperialism from Britain’s policy and to enable the Congress to consider
further cooperation. They hold that a Constituent Assembly is the only
democratic method of determining the Constitution of a free country, and
no one who believes in democracy and freedom can possibly take exception
to it.

Referring to the communal issue, the Working Committee said:

The Working Committee believe too that the Constituent Assembly alone
is the adequate instrument for solving the communal and other difficulties.
This, however, does not mean that the Working Committee will relax their
efforts for arriving at a solution of the communal problem. This Assembly
can frame a Constitution in which the rights of accepted minorities would
be protected to their satisfaction, and in the event of some matters relating
to minority rights not being mutually agreed to, they can be referred to
arbitration. The Constituent Assembly should be elected on the basis of
adult suffrage, existing separate electorates being retained for such
minorities as desire them^

The attitude of the Muslim League has also to be mentioned in this context.
The League had not yet begun to think in terms of Pakistan, though the
rift between it and the Congress had widened to a degree which seemed
beyond the resources of its leaders to remedy. Tlie resolution adopted by
the Muslim League in September, 1939, was devoted to denunciation of ihe
federal scheme, of the Congress Ministries, and of the Governors for failing
to use their special powers to safeguard the interests of the Muslims. It
declared that Muslim India stood against the exploitation of the people
of India and upheld the goal of a free India, but would be irrevocably
opposed to

any federal objective which must necessarily result in a majority community
rule under the guise of democracy and a parliamentary system of
government. Such a Constitution is. totally unsuited to the genius of the
peoples of the country which is composed of various nationalities and does

not constitute s national State.

■ '

^Gwyer & Appadorai, Speeches and Documents on the Indian Constiiution,
VoL 11, p. 4S7.

Tm. p. 497.

HISTORICAL BACKGROUND

The resolution reiterated the claim of the League to be the only
organization that could speak for the Muslims of India and demanded an
assurance that no declaration regarding the question of constitutional advance
for India should be made without the consent and approval of the League*.

The reaction of the British Government and the Viceroy did not reveal
a sympathetic response to India’s national aspirations. Samuel Hoare, then
Lord Privy Seal in the British Government, speaking in the House of
Commons on October 26, declared that while the ultimate aim of British
policy in India was Dominion Status, the pace of political advance had to
be decided by the British Government. He said:

Muslims are firmly opposed to a Hindu majority at the Centre ; the
Depressed Classes and other minorities genuinely believe that responsible
Government, meaning a Government dependent upon a Hindu majority,
will sacrifice their interests. . . These anxieties still exist. I wish they did
not. But as long as they do exist, it is impossible for the Government to
accept a demand for immediate and full responsibility at the Centre on
a particular date. If we did so, we should be false to the pledges that
time after time we have given in the most solemn words to the Muslims
and the other minorities and the European community^.

In one respect, however, Hoare went further than his predecessors: he gave
an assurance that Dominion Status W'ould mean the application to India
of the Statute of Westminster. Its significance lay in the fact that it committed
a Government which included Churchill to a policy which he had opposed
with vigour six years earlier when Baldwin was the Premier.

For Gandhi and the Congress this gesture did not appear to be adequate.
They insisted on India’s right to frame her own Constitution without outside
interference. Independence, they asserted, need not mean hostility to Britain.
Through all the twenty years that Gandhi had been the leader of the Congress,
he had never faltered in his vision of an Indo-British partnership on a free
and voluntary basis.

In October-November 1939 came the resignations of the Congress
Ministries from the seven Provinces in which they had held office for over
two years. The decision to abandon office came as the inevitable sequel to
the divergent policies of the right and left wings of the Congress. The latter
were determined to pursue a course of action, designed to compel the British
Government to accept the demand of the Congress for a definite commitment
to India’s right to frame her own Constitution: but their methods of agitation
would have involved the right wing elements who held office in situations of
embarrassing perplexity. The easier course was to give up office rather than
take action against their radical colleagues.

TGwyer & Appadorai, Speeches and Documents on the Indian Constitution,
Vol. II, pp. 489-90. •

m. C. Deb., Vol. 3S2, cols. 1637-S. *

FRAMING OF INDIA’S CONSTITUTION

The Viceroy continued his parleys with Gandhi, summoning in addition
the Congress Presicfent and Jinnah for a joint but unsuccessful discussion of
a proposal to expand the strength and authority of his Executive Council
within the frauiework of the 1935 Constitution. The Congress emphasis
was on India’s post-war status; but the British were unwilling to give any
guarantees acceptable to the Congress and go beyond an offer of immediate
changes of an interim character.

In' the early stages of the world war the Congress leaders decided to^ ask for
an unequivocal statement of British war aims towards India before
deterniiiimg their attitude to the war. Gandhfs proposal of unconditional
cooperation with Britain and her Allies was limited to moral not active
support conS'istent with his creed of non-viole'uce. Nehru, on the other
hand, keenly aware of the danger of a Nazi victory to the world’s progress
on democratic lines, was in favour of full support in men and resources,
provided that India’s place as a free country was assured in the reconstruction
of the world at the end of the w^ar. The Viceroy, on his side, could not be
persuaded to go further than a general assurance that the goal of Dominion
Status was implicit in British policy towards India in an undefined future.
At that stage the Congress leaders would liave been co<ntent with the kind of
declaration which Stafford Cripps later offered to India in March 1942 on
behalf of Churchill’s War Cabinet. Until the collapse of Belgium, Holland
and France in the summer of 1940 had undermined their confidence in an
ultimate British victory, they were more concerned with India’s post-war
status and position than with any temporary arrangements during
the war.

In January 1940, a statement by the Viceroy in Bombay, offering India
Dominion Status of the “Statute of Westminster variety” at the end of the
war evoked a prompt response from Gandhi who saw in it “germs of an
honourable settlement”. This hope, however, proved short-lived : an interview
between the two in Delhi in February ended in failure. The British
Government was prepared (the Viceroy told Gandhi) to examine the entire
field of constitutional progress in consultation with representatives of all
parties and interests in India at the appropriate time and to shorten to tils
utmost extent possible the transition period. The federal scheme in the 1935
Act he commended as affording the swiftest transition to Dominion Status.
The British offer was indicated as being in two stages:

(a) an immediate expansion of the Executive Council by the inclusion in
it of representatives of the political parties in India; and

(b) after the war, the reopening of the federal scheme to expedite the
achievement of Dominion Status. «

The vital ffifference between^ the Congress demand' and the Viceroy’s' offer
was, according to Gandhi, that' while the former contemplated the final
determination - of India’s 'destiny by the British Government, the position of
the Congress was that the people India should decide it without outside

HISTORICAL BACKGROUND

interference. Gandhi saw no prospect of a peaceful and honourable
settlement between Britain and India without the el'mination of this
fundamental difference; self-determination for India, he argued, would
automatically solve the problems of defence, the minorities, the Ponces and
European interests'.

Early in Marchs 1940, a proposal was published in an article in the Hindu
of Madras that a scheme broadly on the lines of the Anglo-Egyptian agreement
of 1922 might provide a useful basis for the discussion of the Indian problem.
It sought a British declaration that India would be free to draft her own
Constitution at the end of the war on the basis of complete freedom, subject
to certain conditions: (1) the Constitution to be acceptable to Muslims and
the other minorities; (2) a prior agreement between the representatives of
Britain and India “in a spirit of friendly accommodation” (a phrase borrowed
from the Anglo-Egyptian agreement) on (a) defence, (b) British interests and
(c) the Indian States. Such a declaration could be coupled with an offer
from the Viceroy accepting the principle of a provisional National Government
at the Centre, the details of which could be worked out by a conference of
the Premiers of the eleven Provinces. Gandhi’s approval of the formula was
prompt as an acceptable solution of the Indian problem. Modifications
suitable to local conditions could be worked out. he added, by a “committee
of the best Indians and the best Englishmen”. There was, however, no
response from the British Government.

The reverses which nearly overwhelmed Britain and her Allies in Europe
in the summer of 1940 produced profound reactions in India. A section
of the Congress, impressed with the need for coming to terms with Britain,
offered active cooperation in the prosecution of the war through a National
Government, though radical elements continued to press their demand for a
long-range declaration of British policy.

With Churchill’s assumption of the Prime Ministership in May 1940,
suspicion deepened in India that the British would not part with power.
Negotiations, however, continued behind the scenes for a settlement between
the Congress and a section of the Muslim League which did not favour the
division of India into two sovereign States. Sikandar Hyat Khan, the Punjab’s
Unionist Premier, placed before the Congress leaders a formula that the British
Government should make a declaration making it clear that India’s status
would be that of a self-governing Dominion in accordance with the Statute
of Westminster. So far as the framing of the Constitution was concerned,
it should be left to Indians themselves to formulate a scheme by mutual
agreement. The machinery of the agency to which this task of constitution-
framing would be entrusted could fee settled by the various parties and
interests concerned; and the British Government and the Viceroy, if so

’Gwyer & Appadorai, Speeches and Documents on the Indian* Constitution,
Vol. U, p. 499. •

FRAMING OF INDU’S CONSTITUTION

desired, should be^prepared to assist in bringing about a settlement on the
question of the machinery. For the transition period, which must necessarily
elapse before India could assume full responsibility, appropriate arrangements
could be made for the administration of certain subjects like defence, external
affairs, etc. The duration of this period, the nature of the arrangements to
be made, as also the question of British commercial interests and the Indian
States, were to be settled by negotiation in a conference of British and Indian
representatives. So far as Britain was concerned, she should be prepared
to confer Dominion Status immediately after the war, or even earlier; in
fact, as soon as the parties and interests concerned were able to formulate
an agreed constitution.

Gandhi, impressed with the possibility of coming to terms with Sikandar
Hyat Khan, indicated his personal approval, reserving full assent until after
discussions with the other leaders of the Congress. Realizing that he could
no longer remain a detached adviser of the Congress, he assumed control
of the movement and by skilful manoeuvring secured some more time for
further parleys with the Viceroy. He made it abundantly clear that he would
not launch a campaign of civil resistance (for which the leftwingers were
clamouring) so long as the Viceroy was persisting in his efforts to reach a
settlement through negotiations. Moreover, Hindu-Muslim tension had
become more acute through the occurrence of riots in some parts of the
country. At the back of Gandhi’s mind was the feeling that, however
unsatisfactory might have been Britain’s policy towards India, in a war
which was forced on her by Germany’s aggression, it would be morally wrong
to seek advantage from her difficulties in Europe.

Meanwhile, the concept of a separate State of Pakistan had begun to take
shape in a Muslim League resolution at its Lahore session on March 23.
1940. The resolution stated certain basic principles for the framing of a
Constitution; geographically contiguous units were to be demarcated into
regions which should be so constituted with such territorial readjustments
as might be necessary, that the areas in which the Muslims were numerically
in a majority as in the North-Western and Eastern zones of India should
be grouped to constitute independent States in which the constituent units
should be autonomous and sovereign”. Secondly, adequate, effective and
mandatory safeguards were to be specifically provided in the Constitution
for minorities in these units in the regions for the protection of their religious,
cultural, economic, political, administrative and other rights and interests
in consultation with them. Reciprocally, in other parts of India where the
Muslims were in a minority, safeguards of the same kind were to
be inserted in the Constitution for their protection and that of other
minorities.

The Muslim League’s resolution further empowered its Working Committee
to frame a tonstitution in accordance with these basic principles providing
for the assumption flnaUy by the respective regions of all powers such as

■HISTORICAL .BACKGROUND

defeaee, ..external affairs. .comiiiuoicatiO'ns, customs and sugh other matters .as
. might be , necessaryh

The ..resolution , was interpreted, by Jinnah and Sikaiidar Hya^ Khan .in
very di.fferent ways. The former was clear in his mind that the League’s
resolution implied the establishment of a sepa.rate State or States; .while
Sikaiidar Hyat Khan interpreted it as meaning no more than the .concession
of maximum autonomy to regions .in which the Muslims formed a majority
of the population.

A section of the Congress Working Committee was willing to .proceed on
the .latter basis. A meeting between Maukna Aza-d, the ■President 'Of the
Co,ngress and Sika.iidar Hyat Khan took place in Delhi early ...in July . 1940.;
but the negotiations could not ma.ke much headway in the absence of , a
pos...itive response from, the British.

Early in August came an announcement which was made by the Viceroy
on. behalf of the British Government. This announcement again e.mphasized
that Dominion Status was the objective of British policy in India; -but the
immediate objective was the achievement of a unity of national purpose in
India which would enable her to make the fullest contribution in ‘'the world
struggle against tyranny and oppression”. For this purpose the Governor-
General intended to invite representatives of Indian political life to join' his
Executive Coimci!; he also proposed to establish a War Adviso,ry Councih
including representatives of the Indian States and of other interests in The
national life of India as a whole. The announcement finally appealed for
the cooperation of the .Indian political partiesl

There followed, again a series- of discussions between the Viceroy and
the leaders of the various political parties. ■ The Congress rejected the offer
because, according to it, apart from other fundamental questions, there was
no kind, of suggestion in it for the setting up of a National Goveniment
in India'*. The M'uslim League carried o.n. some negotiations with the
Viceroy, mainly for strengthening its- own . position. Thus the. .League
considered that a r!i.eiiibersliip of two, allotted to it in the expanded Executive
Council, was inadequate and "did not give any real and substa-ntial share
in. the authority of the Government”. There being no satisfacto.ry response
from the Viceroy on the assurances, sought -by Jinnah, the Muslim League
..also decided, not to accept the August ■1,940 .offerk With the two. major
organizations in I-ndia hostile to his proposals, the Vice.roy announced, that
he .W'Oiild ■ not proceed- with the. enlargement of the. Executive- .Council, .and
-.the setting up of a ■ War .A-dvisory Council

The " Congress Working Committee, --while rejecting the August ..■ offer, was

' m .

^Gwyer & Appadorai, Speeches '.-and Documents 'oti''the Indinn Const! tuikm,
Vol. Ih p. 443.

\SeIect Documents I, 35, pp. 123-5. ' - -

P. Menon, The Transfer of Power in Indio, p. 97,
p. 99,

■4- ■-

FRAMING OF INDIA’S CONSTITUTION

nevertlieless williag to reconsider its attitude if the section of the Muslim
League led by Sikandar Hyat Khan would come to terms iii spite of Jinnah’s
opposition to such a move. But the Muslim leader from the Punjab seemed
unwilling to dissociate himself from Jinnah. Gandhi’s attitude at that stage
was one of unwillingness to embarrass the British; but he was reluctantly
moving to the conclusion that the British were intent only on exploiting the
situation by raising the problem of minorities.

TOe attempt was renewed some months later by Sikandar Hyat Khan to
reach a settlement on certain tentative proposals; (1) a representative
committee to draft a constitution on the basis of full Dominion Status; (2)
reservations in regard to defence, Indian States, etc. to be agreed to by the
representatives of India and the British for incorporation in the Constitution;
(3) coalition Ministries in the Provinces; (4) the reconstitution of the Central
executive for the interim period to be settled by a conference of the eleven
Premiers of the Provinces; (5) the Viceroy to agree to the transfer of all
portfolios (with the exception of certain parts of defence) to Indian members
of the Executive Council; (6) such questions as the number of permanent civil
servants in the Executive Council, their portfolios, their right to vote or merely
to participate in discussions, etc., to be settled by the Viceroy in consultation
with the eleven Premiers; (7) joint deliberations on all subjects by the Central
Executive Council.

In the face of the British Government’s persistent refusal to go beyond the
existing structure of the Government of India and the attitude of the political
parties, no advance was possible and the political stalemate continued. The
only change made was that in July 1941 five Indian members were added to
the Governor-General’s Executive Council.

Stafford Cripps, then Lord Privy Seal, arrived in New Delhi towards the
end of March 1942, as a member of Churchill’s War Cabinet, bringing with
him proposals for a settlement of the Indian problem.

The details of the British Cabinet’s plan, known subsequently as the
Cripps plan, were not known to the members of the Government of India
before his arrival, nor to the Governors of the Provinces. The contents were
disclosed to the former at a special meeting of the Executive Council a day
after his arrival, and later individually to the Governors of Provinces who
were invited to visit Delhi. One of the Indian Executive Councillors revealed
what he and his colleagues thought of the proposals:

We all heaved a sigh of relief wheif Cripps revealed them to us last night. I
said to a colleague next to me, these will never be accepted by the Congress.

The Executive Council was resentful that it had not been taken into
coqgdence until almost the commencement of the negotiations. Even later.
Members of the Council saw Cripps only once during the negotiations and

HISTORICAL BACKGROUND

collectively again ^ after the final breakdown. Also, ChurchilFs, annouiiceiiieiit
in. London of the Cripps Mission sounded oddly significant: Cripps, it was
said, would discuss the ' political problem with Indian leaders and the military
situation with the Viceroy and General Wavell. Press correspondents in New
Delhi :were briefed to say that the Viceroy, far from resenting this
aixangement, was . ‘‘delighted”, because he would be. free, from the
preoccupations of the political problem.

Cripps was under the impression that the Congress point of view had not
greatly altered during the two years and more that had passed since his first
visit tO: India in 1939. He realized only late in the negotiations that from
the Congress leaders' standpoint the centre of interest had shifted almost
entirely from the future to the immediate present.

It was clear that he had succeeded only after considerable difficulty in
getting the War Cabinet to assent to the proposals associated with his name.
They were not entirely his; Amery too had a hand in shaping them. But they
were the utmost (he told some Press correspondents) that he could get from
Churchill: and having gone so far, he was embarrassed to think that the
Congress demand was likely to be very different.

An important factor governing India's attitude towards defence at this
critical juncture has received singularly little attention. On February 21,
1942, a month before Cripps’ arrival in New Delhi, General Molesworth, then
Deputy Chief of General Staff in India, broadcast to the country.

Japanese warships are operating in the Bay of Bengal and the Indian
Ocean, and we must expect that these activities will be increased. Such
activities may affect both our east and west coasts. These activities may
include sporadic bombardments of coastal towns coupled with attacks by
aircraft carried by surface raiders. The possibility of minor raids and
landings on our coasts cannot be excluded. If the threat to Burma develops
further, we may have air attacks on North Eastern India from land-based
aircraft. Our eastern coast line is some 2,000 miles in length and it Is
far from easy to locate a raider on so vast a seaboard.

Anxieties in India deepened as a result of even franker admissions by the
same officer at a Press Conference of likely developments in the Bay of
Bengal. Later still, in March 1942, in an address to the Rotary Club of
Delhi, he said :

Everybody in India is asking : What are we going to do to keep the
Japanese out. From the point of view of the army in this enormous
battle-front we shall hold vital places which it Is necessary to hold In order
to make India safe, but we cannot hold every one.

. Therefore, what ' Is. to be done for^the rest of India where we are unable
'.to put .troops or 'air or naval forces?

FRAMING OF INOIa'S CONSTITUTION

^ ' We cannot agn all. 'On the other hand, we can 'do a great deal to educate
■ the masses to give the Japanese a great deal of trouble. This' must be done
' by 'tjie civil people like you. The' army cannot do it. The people can work
in bands and give ' trouble and delay invasion. It may be there
is no proper lead from the top and no proper leadership down below. Still
; Tfeel the Japanese invasion can be beaten, if we educate the people on the
lines, of They shall not pass’. Psychologically it ■ can only be done ,,by the
intelligentsia, working definitely shoulder to shoulder to work up the peasant.

' ' It was clear from some of Gandhi’s subsequent writings that these passages
in the broadcast had made a profound impression on him.

The terms of the declaration made by Cripps were as follows:

(a) Immediately upon the cessation of hostilities steps shall be taken to set
up in India in the manner described hereafter an elected body charged
with the task of framing a new Constitution for India.

(b) Provision shall be made, as set out below, for participation of the
Indian States in the constitution-making body.

(i) The right of any Province of British India that is not prepared to
accept the new Constitution to retain its present constitutional position,
provision being made for its subsequent accession if it so decides. With
such non-acceding Provinces, should they so desire, His Majesty’s
Government will be prepared to agree upon a new Constitution giving
them the same full status as the Indian Union and arrived at by a proce-
dure analogous to that here laid down.

(ii) The signing of a treaty which shall be negotiated between His
Majesty’s Government and the constitution-making body. This treaty
will cover all necessary matters arising out of the complete transfer of
responsibility from British to Indian hands; it will make provision, in
accordance with the undertakings given by His Majesty’s Goveramenl,
for the protection of racial and religious minorities, but will not impose
any restriction on the power of the Indian Union to decide In the future
its relationship to the other member States of the British Commonwealth.

not an Indian State elects to adhere to the Constitution
it will be necessary to negotiate a revision of its treaty arraogeriierits so
far as this may be required in the new situation.

(d) The constitution-making body shall be composed as follows unless the
■ leaders' of Indian opinion in the principal communities agree upon, some, other

form before the end of hostilities :

Immediately upon the result be^g known of provincial elections which
will be necessary at the end of hostilities, the entire membership of the
Lower Houses of the Provincial Legislatures shall as a single electoral
college .proceed to the , election, of the constilutlon-making body by the
- ' .system of proportional representation. This new body shall be in number

HISTORICAL BACKGROUND

37^;:

about one-tenth of the number of the electoral colie^.

..'■Indian .States, shall be invited to appoint representatives in .the same
proportion to their total population as in the case of the representatives
of British India as a whole and with the .same powers as the, British
Indian members.

(e) During the critical period which now faces India , and until the new
Coiistitution can be framed His Majesty’s Government must inevitably bear
the responsibility for and retain control and direction of the defence of
India as part of their world war effort ; but the task of organizing tO' the
full the military, moral and material resources of India, must be the
responsibility of the Government of India with the cooperation of the
peoples of India. His Majesty’s Government desire and invite the immediate
and effective participation of the leaders of the principal sections of the
Indian people in the counsels of their country, of the Common w'ealth and
of the United Nations. Thus they will be enabled to give their active and
constructive help in the discharge of a task which is vital and essential for
the future freedom of Indiah

in spite of the eventual failure of the Cripps proposals, it is iindeoiable
that they represented the first clear recognition by the British Government
of India’s right to independence. As a long-term arrangement, the proposals
enunciated the right of India to frame her own Constitution in a duly elected
Constituent Assembly. As an immediate measure, transfer of power to Indian
hands was clearly envisaged.

According to Cripps’ declaration at a Press Conference on March 29, 1942
the intention of the British Government was “as far as passible, subject to the
reservation of defence, to put power in the hands of Indian leaders”. He
explained that the object was to “give the fullest measure of government to
the Indian people at the present time consistent with the possibilities of the
present Constitution which could not be changed till the end of the waf’l In
an earlier Press Conference he had observed:

I want to play my part as a member of the War Cabinet in reaching a final
settiement of the political difficulties which have long vexed our
relationships. Once these questions are resolved, and I hope they may be
q,tiickly .and satisfactorily .resolved, the Indian peoples will be enabled,;
to, associate themse.l,ves, fully and freely, not only with Great Britain .and
the other Dominions but with our great Allies, Russia, China and the United
States of America so that together we can assert our deterniination ^ to
preserve the liberty of the peoples of the woiid‘\

On behalf . .of , the Congress, Abul Kalam' Azad accepted. . the position thus
outlined by ■; .Cripps. ■'■ O'bserved:

^Select Documents I, 36(ii), pp. 127-9.

-M. Subramanyan, Why Cripps Failed, p. 56.

^Indian Annual Register (Ian,“June), 1942, p. 219.

FRAMING OF INDIA’S CONSTITUTION

We did not ask for any legal changes, but we did ask for definite assurances
and conventions which would indicate that the new Government would
function as a free government, the members of which act as members of a
Cabinet in a constitutional government. In regard to the conduct of the
war and connected activities the Commander-in-Chief would have freedom,
and he would act as War Minister*.

The Congress was prepared to consider constitutional progress during the
war through “assurances and conventions”, though Cripps himelf did not rule
out the possibility of minor changes in the Constitution, such as the elimination
of the provision for three members of the Executive Council with a minimum
qualification of ten years’ service under the Crown in India.

Early in April Cripps ran into serious difficulty in regard to the
arrangements for the administration of the portfolio of defence. Tej Bahadur
Sapru, Rajagopalachari and B. N. Rau evolved at Cripps’ request a formula
which might prove acceptable to the Congress leaders on the one side and
to the British Government on the other:

During the critical period which now faces India and before the new
Constitution is framed and implemented :

(a) India shall in every possible respect be treated as a free member of
the Commonwealth.

His .Majesty’s Government therefore invite the leaders of the principal
sections of the Indian people to undertake the governance of their country
and to participate in the counsels of the Commonwealth and of the United
Nations in the world war effort.

(b) The members of the Executive Council of the Governor-General will
function on the principle of joint responsibility in the manner of a
Council of Ministers.

Louis Johnson, President Roosevelt’s special envoy, arrived in Delhi on
April 3. His first remark to the editor of these volumes seemed to open
up new possibilities for India: “We are fighting this war”, he said, “more
than the British”. The President, he added, was anxious about two points:
(1) Would India continue fighting alongside the Allied Powers until the end
and not seek a separate peace with Japan? (2) Would free India give
guarantees that she would treat the Muslims and the Untouchables fairly?
If he could be convinced on these two points, the President would use his
influence with Churchill to give India her freedom.

After a long discussion with Nehru on the deadlock in regard to defence,
Johnson produced his own formula:

In amplification of clause (e) of the draft declaration His Majesty's
Government make the following proposition upon the subject matter of the
Defence of India :

(a) The Defence Department shall be placed in the charge of a

Subramatiyao, Why ^Cripps Failed, pp. 74-5.

HISTORICAL BAGBCGROUND

representative Indian member with the exception of fiiiictions to be
exercised by the Commander-in-Chief as War Member of the Executive
Council.

(b) A War Department will be constituted which will take-over such
functions of the Defence Department as are not retained by the Defence
Member. A list of ail the retained functions has been agreed to, to which
will be added further important responsibilities, including the matters now
dealt with by the Defence Coordination Department and other vital
matters related to the defence of Indiak

Defence continued to be the centre of controversy in the negotiations.
Cripps ultimately proposed, on behalf of the British Cabinet, the following
formula:

(a) The Commander-in-Chief should retain a seat on the Viceroy’s Executive
Council as War Member and should retain his full control over all the
war activities of the armed forces in India, subject to the control of His
Majesty’s Government and the War Cabinet, upon which body a
representative Indian should sit with equal powers in all matters relating to
the defence of India. Membership of the Pacific Council would likewise
be offered to a representative Indian.

(b) An Indian representative member would be added to the Viceroy’s
Executive who would take over those sections of the Department of Defence
which can organizationally be separated immediately from the Commander-
In-Chiefs War Department and which are specified under head (I) of the
annexure (Not reproduced). In addition, this member would take over
the Defence Coordination Department which is at present directly under
the Viceroy, and certain other important functions of the Government of
India which are directly related to defence and which do not fall under
any other existing departments and which are specified under the head (II)
of the annexure (Not reproduced)^

This formula, if it proved acceptable to the Congress and other ‘important
bodies of Indian opinion”, Cripps suggested, would enable the Viceroy “to
embark forthwith upon the task of forming the new National Government in
consultation with the leaders of Indian opinion”.

Negotiations continued until April 10, when Azad, in the course of a final
letter to, Cripps, explained the Congress point of view: “We cannot accept
them (the long-range proposals) as suggested.” At the same time, , he added,
.“the ultimate decision... would be governed by the changes made, -in' the
present”. Elaborating this point, he went on:

..The over-riding probiem before all of us, and ,mo.re especially before' all
, .Indians, is,, the defence of the country from agg,ression and invasion." The
, future, . important as ' it is, will depend on w.hat happens ,, in the,,, next few

■^M. Subramanyan, Why Cripps Failed, p. I2S.

, W. P. "Menon, The Transfer ..of Power in India, p. 111,

FRAMING OF INDIA'S CONSTITUTION

■ .months^ and y^rs. We were, therefore, prepared to do, witiioiit any
' assurances for this uncertain future, hoping that through our sacrifices in
the defence of our country we would lay the solid and enduring foundations

^ for a free and' independent India. We concentrated, therefore, on the present.
Regarding proposals for the present, the criticism was that they were vague
and incomplete,

except in so far as it was made clear that His Majesty’s Goveiiinieiit must
inevitably bear the full responsibility for the defence of India. These
proposals, in effect, asked for participation in the tasks of today with a view
' to ensure “the future freedom of India”. Freedom was for an uncertain

■ future, not for the present; and no indication was given in clause (e) of
what arrangements or governmental and other changes would be made in
the present.

In the final stages of the negotiations, however, the Congress leaders were
disappointed with Cripps’ explanation, Azad’s letter complained:

You had referred both privately and in the course of public statements to a
National Government and a ‘Cabinet’ consisting of ‘ministers’. These words
have a certain significance and we had imagined that the new Government
would function with full powers as a Cabinet, with the Viceroy acting as
constitutional head. But the new picture that you placed before us was
really not very different from the old, the difference being one of degree
and not of kind. The new Government could neither be called, except
vaguely and inaccurately, nor could it function, as a National Government.
It would just be the Viceroy and his Executive Council with the Viceroy
having all his old powers. We did not ask for any legal changes ; but we did
ask for definite assurances and conventions which would indicate that the new
Government would function as a free Government the members of which
act as members of a Cabinet in a constitutional government. In regard to
the conduct of the war and connected activities the Commander-in-Chief
would have freedom and he would act as War Minister^

Cripps left India for London on April 12. Before going lie broadcast to
India giving the reasons for his failure. He blamed the Congress leaders for
the breakdown and gave two reasons to account for it: (1) they had demanded
ah immediate change in the Constitution, a point (he said) they raised at the
last moment; (2) they had asked for a National Government untrammelled
by any control by the Viceroy or the British Government. He interpreted
the second point as a system of government ' ‘Responsible, to no legislature or
electorate, incapable of being changed and the majority of whom would
be in a position to dominate large minorities”. Such a position the iiiiiioritics
would never accept; nor' could the British ■ Government consent to a lircacfi
of its pledges to themR

■M. Subramanyan, IF/iy Cripps Failed, pp. 72-5.

Hbid.f p. 60.

HISTORICAL BACKGROUND

Explaining from the Congress point of view the cause the ^ breakdown,
Pvajagopalacliari said:

We were proceeding ail along under- an impression that ' tiif National
Govemnient to be, set ' up would be a Cabinet functioning as in a
constitutional government ; that is to say, that the Governor-General would
accept the advice of Ministers and that the o-niy reservation was the
authority of the Cooimander-in-Chief -and of the British War Cabinet, but
we were aghast when we were told that all the new Members of Government
would only function like the present Executive Coimcil Members, and not
as Ministers in a constitutional government.

A point of considerable significance needs to be made at this stage. ; A
major reversal of roles seemed to have occurred between Gandhi and Nehru
after the failure of the Cripps Mission. By temperament Gandhi v/as
constructive and accommodating in ■ his po'Iicies and outlook. He had for
some years supported the section of the Congress represented by
Rajagopalachari which w’as keen on making the maximum use of the powers
conferred on India by the 1935 Constitution; in the early stages of the- second
world war, he was for India’s unconditional support of Britain and her Allies,
consistently with his creed of non-violence; he encouraged more than one
efiort ill 1940 and ;1941 designed to establish a transitional war-time federation
with the cooperation of Sikaodar Hyat Khan and States like Baroda and
Jaipur. But from 1941 his faith in the sincerity of British promises and
assurances weakened and was practically extinguished by the fate of the Cripps
mission.

On the other hand, Nehru, who had no use for the 1935 Constitution,
except for wrecking it from within, saw in the rapid ris-e of the Nazi and Fas-
cist movements in Europe a grave warning to India and the rest of the world.
With the Allied Powers facing a crisis, especially after Japan’s entry into the
second world war and her spectacular successes in Soiith-,East Asia, Nehru’s
tactics underwent a complete transformation. The failure of the Cripps mission
had much less of an. impact on him tha.n on Gandhi. The imminence of
Japan’s attack on I:ndia w^^as for him a coinpelling reason, for the need to do
fresh thinking on lodo-British relations. In the fateful days following the
departure of Cripps, it was Nehru, assisted by Azad, w’ho exercised a sobering
iiifiiience on Gandhi and prevented him from plunging the country into
'■'anarchy and chaos”. On their insistence, the resolution of the All-Iiidia
Congress Committee at Allahabad adopted in May 1942 underwent
modifications. While demaodiog’ that Britain must ''abandon her hold on
India” and adopting noii-violeiil non-cooperat,ioi,i as its |>olicy, the resolution
kept the door open for further-’ negotiations,, if possible, with the British
Government ; it asserted that India could -deal with Britain only on. the basis
of Independence.

Tlie reactions of the different Congress leaders to the failure of the Cripps
Mission were characteristically .different Rajagopalachari, for instance

FRAMING OF INDIA’S CONSTITUTION

coming from Mac^fas,. reached quick but far-reaching decisions. He was
convinced that the British would not resist the Japanese and the people had
not the m^ans for effective resistance. Only a National Government could
save the country; but the British were not willing to part with , power.

■ Therefore, power had to be wrested from them. How could it be done.?
Only, he argued, by coming to terms with Jinnah and the Muslim League.
Their demand for Pakistan after the war was the lesser of the two evils,
since refusal would mean invasion of India by the Japanese.

Gandhi reflected on the situation very differently. He made the suggestion,
much discussed at the time all over the world, of the complete withdrawal
of British and Allied troops from India. Referring to Britain he said in
his paper Harijan :

There is no guarantee that she will be able to protect during this war all
her vast possessions. They have become a dead weight round her. If she
wisely loosens herself from this weight, and the Nazis, the Fascists or the
Japanese, instead of leaving India alone, choose to subjugate her, they
will find that they have to hold more than they can in their iron hoop.
Whatever the consequences, therefore, to India, her real safety and Britain’s
too lie in an orderly and timely British withdrawal from India.

Nehru’s position was extremely difficult. The Congress Working Committee
was faced with a double crisis. Rajagopalachari was determined to raise
the issue of coming to terms with Jinnah on the basis of conceding the
principle of Pakistan. Tliese two Congress leaders were agreed on the
attitude to be adopted towards the Japanese and on the urgent need for a
National Government to take charge of India’s defence. But their solutions
were different.

Even after Cripps had abandoned his plan, Johnson felt that another effort
should be made to bring about some agreement between the Congress and
the Muslim League : the defence of India, he considered, would be impossible
without such agreement. Johnson proposed a declaration by the British
Government that the British Cabinet would be willing to go to the farthest
limits possible to convert the Governor-GeneraFs Executive Council into a
National Government in practice. The Viceroy would invite a small number
of representative leaders to examine the Constitution from this standpoint.
Johnson added:

If Churchill and Cripps would approve above generally, then through
Viceroy, at London’s direction, Nehru, Jinnah and Rajagopalachari could be
brought together here and if necessary taken to London for final agreement,

I can persuade Nehru and Rajagopalachari to attend meeting. Viceroy can
get Jinnah. Before meeting I would have G. D. Biria, most prominent
industriaiist and backer of Gandhi, talk with Gandhi.

Both Congress and Cripps have stated there will be no further approach
by either ; therefore, outside move must be made if India is to defend
fierself and not be another France. At this distance I believe no one but

HISTORICAL BACKGROUND

President can move successfully, Nehru writes me to^ay of “ierce feeling
against Britain”. America alone can save India for' the United Nations cause
and my suggestion ought not be disposed of on basis of meddling' in internal
affairs of a subject nation. I respectfully urge that saving India concerns
America as much as Great Britain. The effort cannot harm. It may be
the miracle. I urge immediate consideration and, being on the ground,
pray for President’s aid. Time of essence'.

But President Roosevelt had become cautious • and was. reluctant- to
pressurize Churchill further. He told Johnson' that .■ while he greatly
appreciated his earnest efforts,

an unsuccessful attempt to solve the problem along the lines which you
suggest would, if we are to judge by the results of the Cripps Mission,
further alienate the Indian leaders and parties from the British and possibly
cause disturbances among the various communities. On balance, therefore,
I incline to the view that at the present moment the risks involved in an
unsuccessful effort to solve the problem outweigh the advantages that might
be obtained if a satisfactory solution could be founds
Johnson returned to Washington later in the summer, a sick man. Reporting
at a conference, he said :

The Viceroy and others in authority were determined at the time of the
Cripps Mission that necessary concessions should not be made and are
still of the same opinion; ... the British are prepared to lose India, as
they lost Burma, rather than make any concessions to the Indians, in the
belief that India will be returned to them after the war with the status quo
ante prevailing.

Johnson added that he had been reliably informed that the authorities did
not propose to attempt any serious defence of India in the event of Japanese
attack*.

Roosevelt must have felt somewhat reassured by a long message from
Nehru received in April, 1942, in which he had assured the President :

The failure of Sir Stafford Cripps’ mission has added to the difficulties of
the situation and reacted unfavourably on our people. But whatever the
difficulties we shall face them with all our courage and will to resist. Though
the way of our choice may be closed to us, and we are unable to associate
ourselves with the activities of the British authorities in India, still we shall
do our utmost not to submit to Japanese or any other aggression and
invasion. We, who have struggled for so long for freedom and against an
old aggression, would prefer to perish rather than submit to a new invader.
Our sympathies, as we have so often declared, are with the forces, fighting
against fascism and for democracy and freedom. With freedom in our own

'^'Foreign, Relations of the United States* Vol. I (1942), ppv, '649-50., ' ■

^!bid„ p. ,650. ' ' * ■ ■

Hbid,, p. 659.

4 ‘ 4 ^

FRAMING OF INDIA’S' CONSTITUTION

country those syippathies could have been translated into dynamic action'.
Nehru was obviously worried and sad. He decided, after reflecting on the
situation foj;'a quiet , week in Kulu, to go to Wardha for a frank talk with
Gandhi. They had not met for over two months, and much had happened
in' that interval. The details of the talk had not at that time been made
public; but 'Gandhi’s letter of June 14, 1942 to General Cliiang Kai-shek
(published in India in August, 1942 after the arrests of the Congress leaders)
throws significant light on the inner working of his mind:

I am anxious to explain to you that my appeal to the British Power to
withdraw from India is not meant in any shape or form to weaken India’s
defence against the Japanese or embarrass you in your struggle. India
must not submit to any aggressor or invader and must resist him. 1 would
not be guilty of purchasing the freedom of my country at the cost of your
country’s freedom. That problem does not arise before me as I am clear
that India cannot gain her freedom in this way, and a Japanese domination
of either India or China would be equally injurious to the other country
and to world peace. That domination must, therefore, be prevented, and
I should like India to play her natural and rightful part in this.

1 feel India cannot do so while she is in bondage. India has been a helpless
witness of the withdrawals from Malaya, Singapore and Burma. We must
learn the lesson from these tragic events and prevent by all means at our
disposal a repetition of what befell these unfortunate countries. But unless
we are free, we can do nothing to prevent it, and the same process might
well occur again, crippling India and China disastrously. I do not want a
repetition of this tragic tale of woe.

* ;ic 5}{

Unless we make that effort, there is grave danger of public feeling in India
going into wrong and harmful channels. There is every Hkeiiliood of
subterranean sympathy for Japan growing simply in order to weaken and
oust British authority in India. This feeling may take the place of robust
confidence in our ability never to look to outsiders for help in winning our
freedom. We have to learn self-reliance and develop the strength to work
out our own salvation. This is only possible if we make a determined
effort to free ourselves from bondage. That freedom has become a present
necessity to enable us to take our due place among the free nations of the
world. :

To make it perfectly clear that we want to prevent in every way Japanese
; , agg'ression,, 1; would personally agree and I am .sure the Government of free
' India would agree that, the 'Allied Powers might, under treaty with us, keep
their armed forces in India and use the country as a base for operations
against threatened Japanese attack.

^Foreign Relations of the United States, Vol. I (1942), p. 636.

HISTORICAL BACKGROUND

The major, points on which Nehru succeeded in gettiijg Gandhi to modify
•his viewpoint were:

(!) no action against Britain which might even indirectly |issist Japan
against China;

(2) a treaty between the Allies and free India permitting the use of
India as a base for Allied operations against the Japanese;

(3) avoidance of conflict with British authority, if at all- possible'.

At the end of June, the Viceroy announced a further expansion of his
Execiitive Council, adding more Indians to it, but not giving more power
to them. Home and Finance continued to be in British hands,, and a non-
official British businessman was appointed for the first time as the member
in- charge of the newly constituted portfolio of War Transport including
Railways. This step had a two-fold effect. It meant that the British Cabinet
was not willing to go as far as Cripps in having a completely -Indian
personnel for the Executive Council ; and secondly that no settlement would
be sought with the Congress.

At the July (1942) meeting of the Congress Working Committee at
Wardha, it was pointed out in a resolution :

The freedom of India is thus necessary not only in the interest of India
but also for the safely of the world and for the ending of nazism, fascism,
militarism and other forms of imperialism, and the aggression of one nation
over another. Ever since the outbreak of the world war, the Congress had
studiedly pursued a policy of non-embarrassment. Even at the risk of
making its satyagmha ineffective, it deliberately gave it a symbolic character,
in the hope that this policy carried to its logical extreme would be duly
appreciated and that real power would be transferred to popular
representatives, so as to enable the nation to make its fullest contribution
towards the realization of human freedom throughout the world, which is
in danger of being crushed. It had also hoped that negatively nothing would
be done w^hich was calculated to tighten Britain’s hold on India.

These hopes have, however, been dashed to pieces. The abortive ' Cripps
proposals showed in the -clearest possible manner that "there was no change
in the British Government’s attitude towards India .and' that -the 'British
hold on India was in no way to be relaxed. In ' the negotiations' with Sir
: Stafford Cripps Congress representatives tried their utmost to. U'chieve 'a
. m,mi!Tiu,m consistent with the .. national demand, but to mo avail; ' This
.frustration has re.sulted In a' rapid and widespread increase ofill-wiil against
.'-.:-'-Britaln"and:a growing 'satisfaction at 'the' success ■■ of Japanese arms,

On the withdraw^a! of ' British rule 'in 'India, responsible men and women
^Foreign Relations' 'of the United States^ VoL I "■(1942),-':'-^pp.""'675-6.

FRAMING OF INDIA’S CONSTITOTION

of the country jvill come together to form a Provisional Governrnent,
representative of all important sections of the people ; of India, which will
later evolve a scheme by which a Constituent Assembly can be convened
in order to prepare a constitution for the Government of India acceptable

- to all sections of.the people. ■ Representatives of free India and representatives
of Great Britain will confer together for the adjustment of future relations
and for the cooperation of the two countries as allies in the common task
of meeting aggression.

It is the earnest desire of the Congress to enable India to resist aggression
effectively with the people’s united wilj and strength behind it. In making
the proposal for the withdrawal of British rule from India, the Congress
has no desire whatsoever to embarrass Great Britain or the Allied Powers
in their prosecution of the war, or in any way to encourage aggression on
India or increased pressure on China by the Japanese or any other power
associated with the Axis group. Nor does the Congress intend to jeopardise
the defensive capacity of the Allied Powers.

The Congress is therefore agreeable to the stationing of the armed forces
of the Allies in India, should they so desire, in order to ward off and
resist Japanese or other aggression and to protect and help China. The
proposal of withdrawal of the British Power from India was never intended
to mean the physical withdrawal of all Britishers from India..

The decision of the Government of India to arrest Congress leaders after
the endorsement of this resolution by the All-India Congress Committee was
actually taken on July 15.

The resolution of the Working Committee added that on the failure
of the British Government to Avithdraw its ruling power from India and
deal with it on the basis of independence, the Congress would reluctantly
be compelled to utilize all its accumulated non-violent strength in a widespread
struggle, under the leadership of Gandhi. But the decision of the British
Government took no account of the fact that the resolution did leave the
door open for further negotiations. Clearly, the British Government and
the Viceroy had made up their minds not to make any further concessions
on the independence issue.

Worried by reports from India about the possibility of Gandhi starting
a civil disobedience movement. President Roosevelt wrote a letter to him
on August 1, 1942, in the course of which he observed :

l am sure that you will agree that the United States has consistently striven
for or supported policies of fair dealing, of fair play, and of all related
principles looking towards the creation of harmonious relations between
nations. Nevertheless, now that war has come as a result of Axis dreams
of world conquest, we, together with many other nations, are making a
supreme effort to defeat those who would deny for ever all hope of

^in^ian Annua! Register, 1942, Yol. IJ, pp. 207-9,

HISTORICAL BACKGROUND

freedom throughout the world. I am enclosing a gopy -of an address
of July 23 by the Secretary of. State- made with my complete -approval
which illustrates the attitude of this Government.

I shall hope that our common interest in democracy and righteousness
will enable your countrymen and mine to make common cause against
a common enemy\

^ Gandhi, Nehru and Azad took a conciliatory line in their statements, both
before the commencement of the meeting of the All-India- Congress
Committee in Bombay on August 8 and during the debates on the main
resolution, Nehru told the Manchester Guardian on the eve of the meeting
that it would be dishonest betrayal of the Allied cause if free India
were ever to think of a separate peace with any of the Axis Powers"’; that
“the National Government would reaffirm the signature of the representatives
of the Government of India to the pact of the United Nations”; and further
that China was only an example of Japanese aggression. Japan would have
to withdraw from Burma, Malaya, the Dutch East Indies, etc. But, added
Nehru, India would not fight so that these territories could revert to their
old status as imperialist possessions. India would demand the freedom of
all such territories^

The resolution, which was passed by an overwhelming majority by the
All-India Congress Committee on August 8, said that British rule was
“degrading and enfeebling India and making her progressively less
capable of defending herself and of contributing to the cause of world
freedom”. Therefore its termination was “a vital and immediate issue on
which depend the future of the war and the success of freedom and
democracy”.

In order to assure the minorities and particularly the Muslims, who had
expressed their fear of a permanent Hindu majority governing India, the
Congress accepted the view that the permanent Constitution after the war
would

be a federal one, with the largest measure of autonomy for the federating
units, and with the residuary powers vesting in these units. The future
relations between India and the allied nations will be adjusted by
representatives of all these free countries conferring together- for their
mutual advantage and for their cooperation in the common task of
resisting aggression. Freedom, will enable India to resist aggression
effectively with the people's united will and strength behind it.., ,

The, freedom of India must be the symbol of. and prelude to, the freedom
of all other Asiatic nations under foreign domination, Burma, .Malaya,'
' Indo-China, the Dutch Indies, Iran and Iraq must also ' attain their, complete,

. ■freedom. It must be clearly understood, that such of these ,counfrIes as are

^Foreign Relatims of the United States, Vol. I (1942), p. 703,

' ^Manchester' Guardian, August 7, 1942. ■

FRAMING OF INDIA’S CONSTITUTION

■ 'Under Japane^sj^ control now must not subsequently be .placed .under the
rule or control of any colonial power\

Viewing the immediate present from this standpoint, the resolution made
'an earnest appeal to Britain and the 'United Nations to end ‘'imperialist and
authoritarian government” in India; otherwise, a mass struggle based on
non-violence was inevitable, adding that the freedom resulting from the
'■'Success of such a miovement would be for all the people in India, not for
the Congress alone. This mass struggle, the resolution said, would be -under
'Gandhi’s leadership^.

"In one respect, the resolution differed from that adopted at Wardha thrcre
weeks earlier. The formation of a National Government, it was laid down,
■would follow the declaration of India’s freedom, not the withdrawal of
British rule. The distinction was made so that no question, could arise
about a possible interval between these two developments wiiicli Gandhi
had sometimesi declared might be one of chaos.

Nehru declared in his speech in Bombay that the resolution was not a
threat, only an offer of cooperation, but of a free India. Gandhi dwelt
at great length in his final speech on the efforts he and the Congress had
made to secure a Hindii-Muslim settlement. He endorsed Azad’s suggestion
that if the British would transfer power to India, the Congress would be
willing to impose a self-denying ordinance and keep out of the Governiiieiit.
And he added, significantly, that he proposed to ask for a meeting with
the Viceroy.

But neither the resolution nor the speeches had any effect on the decision
of the British Government. They did not wait for the reports of the
speeches, but hastened to carry out the decision to arrest the leaders.

The' interest of the U.S.A. in Indian affairs continued even after Louis
Johnson’s return to Washington. William Phillips, who came out to
India as President Roosevelt’s envoy towards the end of 1942, was more
cautious than his predecessor. But Gandhi’s fast early in 1943 compelled
him to act, if only to prevent the unfortunate impression that the U.S.A.
was backing Britain in regard to India. With a crisis impending— possibly
Gandhi’s death— he was authorized by Washington to express to Linlithgow
'the President’s great concern about the possible' consequences of such a
calamity.' That tragedy fortunately did not occur, though Phillips was
'becoming increasingly diffident about an immediate solution of the Indian
problem.

After 'the termination of Gandhi’s fast, Phillips sent a long letter to
President Roosevelt in which he observed :

Therels ..thus' a co.mpl.ete deadlock afid' I -should imagine; that the . Viceroy
and '.'GhiirchilT are well satisfied Ao"' let .the deadlock .reitialii as long .as

^Select Documents 31,: pp, 132 - 5 .

nhid, ' ^ ■ ■

HISTORICAL .BACKGROUND

49 ,

possible. That ^ Is^ at leasts the general impression in most Indian circles. ,
The problem, therefore, is, can 'anything be done to break this deadlock
through our .help? It seems to me that all we can do is to try to, induce
the Indian political leaders to meet together and discuss the" form of
government which they regard as applicable to India, a.nd, thus to show
the world that they have sufficient intelligence to tackle the problem. , , We
must not assume that they will . adopt the American or British systems. ^In
view of the importance of guaranteeing protection to the minorities, a
majority form of government may not be appiieable,, and a coalition may
prove to be the only practical way of guaranteeing ■ internal harmony. We
cannot suppose that the British Government can or will transfer, power
to India by the scratch of a pen at the coiiciiislon of the Peace ,Coeference
unless there is an Indian Guvernment fit to receive it ,The question, , remains,
there,for,e, how to iiidiiee the leaders ^ to begin now to prepare for their
future responsibilities. There is, perhaps, a way out of the deadlock which
I suggest to you, not because I am sure of. its success, but because I .think
' it is worthy of your consideration.

With the approval and .blessing of -the British Government, an invitation
could 'be addressed, to the leaders of all Indian political groups on behalf of
the President of the United States to meet together. to discuss plans for
the future. The assembly could be presided over by an American .who
could exercise influence in harmonizing the endless divisions of caste,
religion, race and political views. The conference might well be under the
patronage' of the .King-Emperor, the President of the .United States, the
President of the Soviet Union and Chiang Kai-shek., In order to bring
pressure .to bear on Indian politicians; Upon the issuance 'of the invitations,
'the ,Kiog-E.mperor could give a fresh .assurance of the Intention . of the
.British Government to transfer power to India upon a certain..c!ate, as we!! as
his desire to grant a provisional set-up for the duration. The conference
could be held In any city in India except Delhi.

American chairmanship would have the advantage, not only of exp.ressing
the ‘Interest of .America In. the .future independence of .India, but would also
’be a guarantee' to the "Indians .of the British offer.' of independence, .This
iS' an 'important point because, as I have already .said in' ,previous' ' letters,
British promises in this regard are no longer believed.

If either of the principal parties 'refused to attend, .the. confe,re.nce, it, would
be notice to all the world that India was not .ready for self-go vern,men,t, and
I doubt whether a political leader" would put hteself in such a position.
Mr. Churchill and' Mr.. A,mery may be , o.bsta.cles, for, notwithstanding
statements to the contrary, India is governed, from London, down to the
smallest details.

Should you approve the, , general ' idea and ' care '. .to consult Churchill,
he might, reply that since .the Congress .leaders are .in jail, , a meeting such
as is . contemplated Is Impossible.- The answer. could be. that certain ofcthe

■50

FRAMING OF INDIA’S CONSTITUTION

leaders, notably Gandhi, might be freed unconditionally in order to attend
the -conference. The British may even be searching for a good excuse to
■ release Gandhi, for the struggle between him and the Viceroy is over with

- honours for both— -the Viceroy has maintained his prestige ; ' Gandhi has
carried out his protest against’ the Government by his successful fast and
has come back into the limelighth

•In a letter (May 14, 1943) to Roosevelt (after his return to Washington)
Phillips analyzed the Indian situation. ■ In the course of this letter he said :
Assuming that India is bound to be an important base for our future
operations against Burma and Japan, it would seem to me of highest
importance that we should have around us a sympathetic India rather than
an indifferent and possibly a hostile India. It would appear that we will
have the primal responsibility in the conduct of the war against Japan. There
is no evidence that the British intend to do much more than give token
assistance. If that is so, then the conditions surrounding our base in India
become of vital importance.

. . . Indians feel that they have no voice in the Government and therefore
DO responsibility in the conduct of the war. . . The present Indian Army
is purely mercenary. . . General Stilwell has expressed to me his concern
over the situation and in particular in regard to the poor morale of the
Indian officers.

The attitude of the general public toward the war is even worse. Lassitude
and indifference and bitterness have increased as a result of the famine
conditions, the growing high cost of living and the continued political
deadlock.

While India is broken politically into various parties and groups, all have
one object in common, eventual freedom and independence from British
domination.

M ^ m

I feel strongly, Mr. President, that in view of our military position in India
we should have a voice in these matters. It is not right for the British
to say “this is none of your business” when we alone presumably will have
the major part to play in the future struggle with Japan. If we do nothing
and merely accept the British point of view that conditions in India are
none of our business then we must be prepared for various serious
consequences in the internal situation in India which may develop as a
result of despair and misery , and anti-white sentiments of hundreds of
millions of subject people.

The peoples of Asia— and I am ^‘supported in this opinion by ■ other
■ diplomatic and military observers— cynically regard this war as one between

^orei^n Relations of the United States, Vol IV (1943), pp. 206-7.

HISTORICAL BACKGROUND

Fascist' and Imperialist Powers. A generous British gesti^e to India would
, change this undesirable political atmosphere. India itself might then be
expected more positively to support our war effort against Japan. China,
which regards the Anglo-American bloc with misgiving and mistrust, might
then be assured that we are in truth fighting for a better world. And the
' colonial peoples conquered by the Japanese might hopefully feel that they
have something better to look forward to than simply a return to their
old masters. Such a British gesture, Mr. President, will produce not only
a tremendous psychological stimulus to flagging morale through Asia and
facilitate our military operations in that theater, but it will also be proof
positive to all people — ^our own and the British included — ^that this is not
a war of power politics but a war for all we say it ish

After the arrests of Gandhi and the Congress leaders in August, 1942,
a group of men led by Tej Bahadur Sapru took the initiative to make an
effort to resolve the deadlock. In December, 1942, Sapru invited a number
of prominent persons in public life to a special meeting at Allahabad. There
were present one or two members of the Congress like Rajagopalachari
(who had not subscribed to the “quit India” resolution and were, therefore,
out of prison) and spokesmen of the Hindu Mahasabha, the Christian
Conference, the Trade Union Congress, the Liberal Federation, the Akali
Party and the Federation of Indian Chambers of Commerce.

These persons met on December 12 and 13, 1942 to consider the situation.
No formal resolution was adopted, since the primary object was to explore
the possibilities of holding later an all-parties’ conference; and the members
had declared that they had no mandate from their respective organizations
to commit themselves to any definite course or policy.

After discussions for two days, Sapru declared that there was a widespread
anxiety to reach a solution of the political deadlock and also a basis of
agreement likely to prove generally acceptable. The details of such an
agreement could not assume final shape until those present at the conference
had an opportunity of discussing them with their respective organizations.
Therefore, at that stage, an early summoning of an all-parties’ conference,
including therein the two major parties in the country, namely, the Congress
and the Muslim League, appeared to be imperative for reaching a settlement.'

Sapru also revealed to the conference that Gandhi was earnestly anxious
shortly before • his arrest to be co-opted for the deliberations "of ' such a
conference. Jinnah too had repeatedly declared his willingness to ■discuss
with leaders uf other parties the details of a possible solution. In order,,
however, to ensure the success of the conference Sapru' and 'those 'associated

'^Foreign Relations of the United States^ Yoh IV (1943), pp. 220-2,

FRAMING OF INDIA’S CONSTITUTION

with him considerid it essential that the British Government should announce
forthwith:

(1) tjiat the provisional Government of India, to be formed as a result
of a general agreement, would be endowed with full powers and
authority over the administration, subject only to the position of the
Commander-in-Chief being duly safeguarded in order to promote the
efficient prosecution of the war; and in its relations with Britain and
the Allies, enjoying the status of a Dominion and entitled to all the
rights and privileges associated with such status;

(2) the release of Gandhi and aU Congressmen to enable the representatives
of the Congress to participate in the all-parties’ Conference.

These two steps were essential for the creation of a proper atmosphere
in which the conference could conduct its deliberations and reach a successful
conclusion. The tragic chapter of events of the previous four months, in
particular the decision of the Congress to launch a civil disobedience
movement, no less than the methods adopted to suppress the disturbances
in several parts of the country, it was felt, must be ended without delay
if bitterness and resentment were to be prevented from assuming dangerous
proportions. Sapru concluded the statement in the following terms :

As men anxious to see India throw all her resources into the war effort
we ask the British Government to make this positive contribution towards
the success of the All Parties’ Conference.

On his personal responsibility, Sapru sent a cable to the Prime Minister.
Churchill, for a fresh effort. Certain concrete measures were suggested in
his appeal ;

(1) the conversion and expansion of the Central Executive Council into a
truly National Government^ consisting entirely of non-officials of all
recognized parties and communities, and in charge of all portfolios, subject
only to responsibility to the Crown ;

(2) the restoration in Provinces now ruled autocratically by Governors in
accordance with Section 93 of the Government of India Act, 1935, of
popular governments broad-based on the confidence of the different classes
and communities; failing this, the establishment of non-official Executive
Councils responsible to the Crown, as proposed for the Centre ;

(3) the recognition of India’s right to direct representation through men
chosen by the National Government in the Imperial War Cabinet (should
such a body be set up), in all Allied War Councils, whenever established,
and at the Peace Conference ;

(4) consultation with the National Government, precisely on the same footing
and to the same extent as His Majesty’s Government consult the Dominion
Governments in all matters affecting the Commonwealth as a whole and
India in particular.

These are war measures whose adoption need in no way prejudice the claims
"or demands of different parties in regard to India’s permanent constitution.

HISTORICAL BACKGROUND

But knowing intimately the feelings and aspirations of pm countrymen as
we do, we must express our cQiiviction that nothing less than the inauguration
of this policy can resolve the crisis in India. The urgency of immediate
action cannot be over-emphasized. We appeal to you in all sincerity, but
with the greatest emphasis, to act while there is still time for such action,
so that India may line up with the other anti- Axis Powers on a footing
of absolute equality, with them in a common struggle for the freedom of
humanity.

This attempt on the part of Sapru and liis . associates met with no better
fate than all the previous efforts. Later, on the termination of Gandhi’s
fast, a request was made to the Viceroy by the Sapru group to permit a
deputation to meet Gandhi for a discussion of the Indian problem. Even
this request was turned down. The Viceroy would not permit any special
facilities for meeting Gandhi and the other Congress leaders unless they
changed their attitude and repudiated their policy. So the political stalemate
coiitinued all through 1943 until Gandlii’s release from detention in 1944
following an illness. Towards the end of July of that year Sapru met
Gandhi, with Rajagopalachari and Bhulabhai Desai, a prominent Congress
leader from Bombay.

Gandhi approved of the suggestion that a number of eminent lawyers like
Sapru should draft a memorandum pointing out the reasonableness and
practicability of his proposals. Sapru himself was in favour of the suggestion,
though he vigorously opposed the idea of a deputation to the Viceroy in
order to discuss it with him. Gandhi was not particular about a deputation,
but he seemed clear in his mind that such a memorandum drawn up without
reference to himself could well be made the rallying point for public opinion
of different shades. A movement not confined to the Congress could thus
grow round it.

Later, however, when Sapru went to see Gandhi again, he seemed to have
revised his view, particularly when he found that Sapru, Bhulabhai Desai
and Rajagopalachari agreed that responsibility of the executive to the
legislature could not be brought about without a change in tlie existing
Constitution. Gandlii’s immediate reaction to the view was that if the
memorandum could support his recent proposals embodied in a letter to the
Viceroy it would certainly strengthen his hands. If, on the other hand, the
memorandum explicitly or otherwise emphasized the difference between
Gandhi’s proposals and the demands put forward by men like Sapru, it
would be a hindrance and an obstacle.

" Meaiiwliile, in an attempt to break the deadlock, another move was; made
to reach a settlement with Jinnah and the Muslim League, and the initiative
in this move was taken by , Rajagopalachari. As early as April 1942,
Rajagopalachari had, been convinced ' that, as progress .towards independence
depended on an agreement with the Muslims, and as the MusBm League
had adopted partition as the only basis on which they would cooperale, iX

FRAMING OF INDIANS CONSTItUflON

had becGine iaevil^ble that Congress should concede in principle the Pakistan
demand. He had accordingly given notice of a resolution, to be moved in
the All-India Congress Committee at Allahabad at the end of April 1942.
This resolution said that

to sacrifice the chances of the formation of a National Government at this
grave crisis for the doubtful advantage of maintaining a controversy over
the unity of India is a most unwise policy and ... it has become necessary
to choose the lesser evil and acknowledge the Muslim League’s claim for
separation, should the same be persisted in when the time comes for framing
a Constitution for India.

■ , The resolution suggested that on this basis the Muslim League should be
invited for consultations for the purpose of arriving at an agreement and
securing the installation of a National Government to meet the emergency.
It was rejected by the All-India Congress ComniitteeL Rajagopalachari
did not however give it up; in 1943 he drew up a formula to form a basis
for a settlement between the Congressi and the Muslim League. He consulted
Gandhi during the latter’s incarceration and had communicated it to Jinnah
in April 1944. The formula read :

(1) Subject to the terms set out below as regards the Constitution for free
India, the Muslim League endorses the Indian demand for independence and
will cooperate with the Congress in the formation of a provisional interim
Government for the transitional period.

(2) After the termination of the war, a commission shall be appointed for
demarcating contiguous districts in the north-west and east of India, wherein
the Muslim population is in absolute majority. In the areas thus demarcated,
a plebiscite of all the inhabitants held on the basis of adult suffrage or
other practicable franchise shall ultimately decide the issue of separation
from Hindustan. If the majority decide in favour of forming a sovereign
State separate from Hindustan, such decision shall be given effect to, withoul
prejudice to the right of districts on the border to choose to join either
State.

(3) It will be open to all parties to advocate their points of view before
the plebiscite is held,

(4) In the event of separation, mutual agreement shall be entered into for
safeguarding defence, and commerce and communications and for other
essential purposes.

(5) Any transfer of population shall only be on an absolutely voluntary
basis.

(6) These terms shall be binding only in case of transfer by Britain of MI

power and responsibility for the governance of India".

'Gwyer & Appadorai, Speeches and Documents on the Indian Comthution,

_yol. II, p. 547.

HISTORICAL BACKGROUND

Gandhi did not seem optimistic about a settlement with Jinnah. In his
mind the acceptance of the principle of self-determination for the Muslim
areas was vitally linked up with the formation of a National Government
for the interim period. Gandhi wanted Jinnah to associate himself with
the demand for (a) a clear declaration of independence to become
operative immediately upon tlie termination of the war; (b) the formation
of a real National Government except for reservations in regard to Defence;
(c) the release of Congress leaders. He was not in favour of two complete
separate sovereign and independent States according to Jinnah’s conception.
Nevertheless, in July 1944 he agreed to discuss the formula with Jinnah.
In agreeing to the Rajagopalachari formula he relied on the hope contained
in the phrase “mutual agreement shall be entered into for safeguarding
defence, and commerce and communications and for other essential purposes”;
Gandhi contemplated a treaty of separation which would provide for a
common administration for these matters.

In any event, Gandhi did not seem at all inclined to commit himself to
far-reaching assurances in regard to the functions and authority of the
interim National Government without securing a definite promise of
independence after the war. He felt handicapped by the fact that the members
of the Congress Working Committee were not available to him for
consultations before and during his talks with Jinnah.

The Gandhi- Jinnah talks in Bombay in September 1944 produced no
positive results; but Gandhi made his own position clear. Modifying in
some respects Rajagopalachari’s formula for an understanding with the
Muslim League, Gandhi wrote to Jinnah on September 24, 1944, offering
the following terms:

The areas should be demarcated by a Commission approved by the Congress
and the Muslim League. The wishes of the inhabitants of the areas
demarcated should be ascertained through the votes of the adult population
of the areas or through some equivalent method.

If the vote is in favour of separation it shall be agreed that these areas
shall form a separate State as soon as possible after India is free from
foreign domination and can, therefore, be constituted into two sovereign
independent States.

There shall be a treaty of separation which should also provide for the
efficient and satisfactory administration of foreign affairs, defence, internal
communications, customs, commerce and the like, which must necessarily
continue to be matters of common interest between the contracting parties.
The treaty shall also contain terms for safeguarding the rights of minorities
in the two States. «

Immediately on the acceptance of this agreement by the Congress and the
League the two shall decide upon a common course of action for the
attainment of independence of India.

The League will, however, be free to remain out of any direct action to"

PEAMINQ of IKDIA^S CONSTITUTION

•which the Con*ress may resort and in which the League may not be willing

to participated

The Gaiidlii-Jimali talks, broke down after eighteen days of discussions.
Jionah’s conception of Pakistan covered not only the, Mulsim majority areas
but the whole of the Punjab, Baluchistan, Sind, the North-West Frontier
Province, Bengal and Assam, subject to such minor territorial adjustments
as might be agreed upon. He did not want any plebiscite for the reason that
the Muslim League had claimed Pakistan on the basis that the Muslims
were a' separate nation and could not therefore be asked whether they sought
separation or not. Moreover, according to him, there was to be no treaty
of separation between India and Pakistan on the lines contemplated by
Gandhi; such matters as foreign affairs, defence, communications, customs,
commerce and the like were, Jinnah maintained, the life-blood of any State
and could not be delegated to any central authority or Government. Jiniiali
concluded :

You will therefore see that the entire basis of your new proposal is
fundamentally opposed to the Lahore resolution".

Jiimali’s response, though inadequate, did not appear to rule out a friendly
understanding with the Congress ' as one of the conditions for the creation
of Pakistan. Jinnah was prepared on his side, as he told a newspaper
correspondent on October 5, 1944, to make a gesture, if not an agreement:
Certainly Pakistan ' will have neighbourly relations with Hindustan, like any
other independent national State. We will say “hands off -India” to all
outsiders. Pakistan will not tolerate any outside design or aggression on
this sub-continent. We will observe something like the Monroe Doctrine.
Sapru’s comments on Gandhi’s attitude at this time are of interest He
wrote to B. N. Rau :

, He (Gandhiji) showed me his letter to the Viceroy and discussed the whole
. situation with me at length. I told him that it was, in my, opiiiio,ii, .hopeless
to aim at establishing a National Government responsible to the Legislature
. . during the war and that therefore .he might accept . my ' formula which was
■ to the effect that a National Government .might be established, ■ consisting
" of representatives of ail parties, .who would not be liable to be d.ismissed
by the Legislature during the interim period but , would technically be
' '"responsibie to the Crown.. It meant that the power of (the British)
Parliament and the Secretary of State would continue during the i.iiterim
. ' period. He entertained this proposal at first as a possible aiteraative to his
formula; but later in the evening he thought that he- would not be meeting
, ' ; Ms own de.mand:by mentioning' it as a possible alternative. He was prepared
to agree to the principie of self-determination on democratic grounds ; but
I do not ..think he, would be 'prepared to go further than the formula of

^Gwyer and Appadorai, Speeches md Poeumenis on ^ Indimi Constitution,
II, p. 550.

"■ md,. p."'55i. ■ ■ .• ■ -

HISTORICAL BACKGROUND

Mr, Rajagopalachari. He seemed to me to be in earnest about a
settlement.. As you are no doubt aware, it has provoked a great controversy.
The Hindu Sabha people and the Sikhs are up in arms. ' Ultimately the
whole matter resolves itself into two questions : (1) is there going to

be one Centre or are there be two Centres? Assuming, that „ Jinnali insists
on two Centres, what is going to be the nexus between them? (2) w,iii the two
Centres be combined by an Act of Parliament or by a treaty ? If
by a treaty what will be the means adopted for implementing that' treaty ?
If machinery is set up for implementing it, that machinery must 'inevitably
take the shape of a government. So far as Gandhi’s desire to bring about
a settlement is concerned, I am in co,mpiete sympathy with him and I also
realized that without winning over the minorities we can make no advance.

The failure of the Gandhi-Jinnah talks carried with it the danger that the
political stalemate in India would continue indefinitely. Meanwhile
another attempt was made by Tej Bahadur Sapru and his friends (who
represented the Non-Parties’ Conference) to explore the possibilities of a
settlement of the minorities issue. Sapru had taken the initiative in this
matter soon after the release of Gandhi, and had a meeting with him in
August 1944. At that time negotiations were going on for direct talks
between Gandhi and Jinnali — talks which, as we have seen earlier, ended
in failure. In October 1944, Sapru wrote again to Gandhi. They met in
November', when Gandhi made the suggestion that Sapru should take the
lead and invite an All Parties’ Conference. Sapru was not however in favour
of this idea, and favoured Gandhi himself calling a national convention — a
suggestion to which Gandhi would not agree. After further discussions,
the two agreed that a committee should be set up. The object of this
comniittee would not be to “bring about a settlement in the sense that the
document would be executed, sealed, signed and delivered”. The whole
purpose W'ould be to understand the point of view of each party and to act
as a sort of conciliatioi} board by establishing contacts with leaders of all
parties and then to recommend a solution on its own responsibility.

It would be open to these parties, the Hindus, Muslims, Depressed Classes,
Sikhs, Christians and Parsis to accept it wholly or partially or reject it.
There is no question of failure or success. When that had been done It
would be for leaders of the different parties to consider whether at that
stage they should not call a bigger conference",

: It was further agreed that the members of such a committee would not
belong to the Congress, the Muslim League, the Hindu Mahasabha or any
one, of the recognized parties, big or small, and that they would be persons
who had not committed themselves* definitely to any particular views since
the .breakdown',,' of the talks between Gandhi' and J',in.nali-

“^Comiiiuiionai Pmposais of the Sapru Committee, p. 2.

FRAMING OF INDIA’S CONSTITUTION

At the request c€ the Standing Committee of the Non-Parties’ Conference,
Sapru himself undertook the appointment of the committee. It consisted
of eminent and talented persons. The recommendations of the committee
were fonnulated in April, 1945. The committee rejected the Pakistan idea;
it was convinced that “the partition of India would be an outrage justified
neither by history nor by political expediency”'. Having said this, its
recommendations were directed towards the formulation of an acceptable
arrangement for the immediate freedom of India and the eventual formation
of a Constituent Assembly to frame her Constitution. As an immediate
solution, the committee proposed that India should by a royal proclamation
be declared an independent State and “treated as a Dominion equal and
in no way inferior to any other Dominion in the British Commonwealth of
Nations”. In order to achieve this, the committee suggested that popular
ministries should be re-established in the Provinces, and that in the formation
of Ministries the Premier representing the largest single party in the
Legislature should be required to include persons commanding the confidence
of other important parties in the Legislature'.

The immediate formation of a National Government at the Centre was
also recommended, either by altering the Constitution by making provision
for the functioning of the Governor-General in Council as a body consisting
of Indian members commanding the confidence of the Central Legislature
(except for the Commander-in-Chief who would continue to be ex-officio
a member of the Council in charge of war operations), or by bringing the
federal portion of the Government of India Act of 1935 into immediate
operation without the condition, of the entry of Indian States, and setting up
a Federal Legislature and federal executive in accordance with the provisions
of that Act. For a long-term solution the committee recommended the
setting up of a Constituent Assembly with a total membership of 160 of which
51 would be Hindus (other than, Scheduled Castes) and 51 Muslims. This
Assembly was to be elected by the members of all the Provincial Legislatures
by the system of proportional representation. The committee also set out
its own views on the leading principles to be included in the new Constitution.

In spite of the eminence of the members of the committee and the obvious
efforts they were making to face their task in an impartial manner, their
recommendations did not contribute in any appreciable measure towards a
solution of the Indian political problem.

Several reasons contributed to this failure. In the first place, the outright
rejection of the idea of Pakistan necessarily meant that the Muslim League
would not even look at a solution on the lines recommended by the Sapru
Committee. The idea of parity for Muslims and Hindus, in spite of the
much larger number of the Hindu population, made the scheme unpalatable

'Constitutional Proposals of the Sapru Committee, p. 161.

’Ibid., App. II, pp. iii-xvi.r

historical background

to many Hindus. Above all, the committee’s recommendations were
formulated at a time when the Viceroy was himself in London discussing
with the British Government his plan for breaking the political stalemate
in India; and the proposals of the Sapru Committee were not taken seriously
in official circles. Thus the earnest labours of the committee failed to make
any impression on official thinking.

Meanwhile, the Viceroy, Wavell, had taken the initiative for a fresh effort
to tackle the political problem in India. The formulation of this plan was
started in the summer of 1944, with a definite turn in the fortunes of the
war in favour of the anti-Axis countries. It took into account both the
political situation and practical considerations. Wavell expected that
Germany would be completely defeated by the end of 1944 and that Japan
could not hold out for more than some months thereafter. On the political
plane, the promise of Dominion Status made to India would have to be
redeemed. On the practical side, the Viceroy foresaw that difficult post-war
problems would arise for settlement — widespread demobilization and a big
rise in unemployment resulting from the large-scale release of labour from
war industries. In tackling these problems, the Viceroy formed the opinion
that the assistance of popular elements in the country would be invaluable.
The actual plan formulated by Wavell, after consulting all the Governors,
was simple and straightforward. He would call a small conference of the
leaders of all the important parties in the country and discuss with them the
formation of a “transitional” Government under the existing Constitution.
This executive would consist of an equal number of Hindus and Muslims,
with one representative of the Depressed Classes and one Sikh, in addition
to the Viceroy himself and the Commander-in-Chief. Its task would be to
prosecute the war with Japan with the utmost energy and to carry on the
government of British India until a new Constitution came into force; to
appoint British Indian representatives to the Peace Conference and other
international conferences; to consider the composition of the Constituent
Assembly, or other body, which would draft the Constitution and negotiate
a treaty with His Majesty’s Government; and to secure the approval of the
leaders of Indian opinion in the principal communities to the composition
proposed. The conference would also consider the best means of re-establi.sh-
ing popular governments in the Provinces, governed under section 93,
preferably with Coalition Ministriesh

In the face of considerable resistance from the British Government, the
Viceroy persevered with his proposal. Eventually, in March 1945, he went
for personal consultations to London.

In the meanwhile another developiJtent had taken place in India. This was

'V. P. Menon, The Transfer of Power in India, pp. 167-8. In these Provinces,
following the resignation of Congress Ministries, administration had been diiecti^
assumed by Governors — Madras, Bombay, the U.P., thp C.P., Bihar and Orissa.

framing of INDIANS CONSTITUTION

the - ‘"Bhnlabliai iDesai-Liaquat Ali Plan” formulated early in 1945.
Bhulabliai Desai was a Congress leader of high standing and Liaqat Ali
Khan was the de facto leader of the Muslim League Party in the Central
Legislature,, his position in the party being second only to that of Jinnah.
The. plan was that

the Congress and the League agree that they will join in forming an Interim
Government in the Centre. The composition of such Government will be
on the following lines :

(a) an equal number of persons nominated by the Congress and the
League in the Central Executive (the persons nominated need not be
members of the Central Legislature);

(b) representatives of minorities (in particular the Scheduled Castes and
the Sikhs);

The Government will be formed and function within the framework of the
existing Government of India Act. It is, however, understood that, if the
Cabinet cannot get a particular measure passed by the Legislative Assembly,
they will not enforce the same by resort to any of the reserve powers of the
Governor-General or the Viceroy. This will make them sufficiently
independent of the Governor-General.

It is agreed between the Congress and the League that if such interim
Government is formed, their first step would be to release the Working
Committee members of the Congress.

The steps by which efforts would be made to achieve this and are at
present indicated to take the following course:

On the basis of the above understanding, some way should be found to
get the Governor-General to make a proposal or a suggestion that he
desires an interim Government to be formed in the Centre on the
agreement between the Congress and the League and when the Goveriior-
Generai invites Mr. Jinnah and Mr. Desai either jointly or separately, the
above proposals would be made declaring that they are prepared to Join
in forming the Government

The next step would be to get the withdrawal of section 93 in the
Provinces and to form as soon as possible Provincial Governments on
the lines of a coalitionL

This plan came very close to the one which Wayell himself had in view,
and it had the further merit that it was produced in India. Unfortunately
for the latter argument, after Bhulabhai Desai had sponsored it, both Jiniiali
and Liaqat Ali Khan repudiated this formula.

In London the Viceroy’s plan was* generally adopted after prolonged
discussions, and the Viceroy returned to India early in June 1945. Meanwhile

'Gwyer .and AppB,dorzl/ Speeches and Documents on the" Indian Comiitutimi
Vol.ll, p. 556. '

HISTORICAL BACKGROUND

Germany had laid down arms on May 9 and the end of tie war with Japan,
it was expected, would soon follow.

Soon after his return to India, Wavell proceeded to act. On June 14,
1945,' Amery, the Secretary of' State for India, made a statement in the
House of Commons, the important points from which were:

The main constitutional position remained as it was. The offer of
March 1942 stO'(xi in its entirety without change or qualification. The
Government still hoped that the political leaders in India might be , able
to come to an agreement as to the procedure whereby India’s permanent
future form of government could be determined.

It was proposed that the Executive Council should be reconstituted
and that the^ Viceroy should in future make his selection for nomination
by the Crown for appointments to his Executive from amongst leaders
of Indian political life at the Centre and in the Provinces, in proportions
which would give a balanced representation to the main communities,
including equal proportions of Muslims and caste Hindus.

In order to pursue this object, the Viceroy would call into conference
a number of leading Indian politicians who were the heads of the most
important political parties or who had recent experience as Premiers
of Provinces, together with a few others of special experience and
authority.

If such co-operation could be achieved at the Centre, it would no
doubt be reflected in the Provinces where, owing to the withdrawal of
the majority party from participation, it became necessary to put into
force the powers of the Governors under section 93 of the Act of
1935 .

This was supplemented by the Viceroy in a broadcast talk on the same
day:

I have considered the best means of forming such a Council (referring to
the Executive Council); and have decided to invite the following to the
Viceregal Lodge to advise me :

Those now holding office as Premier in a Provincial Government; or
those who last held the office of Premier for Provinces now under
: , section 93 Government ;

, The Leader of the Congress Party and the Deputy Leader of the Muslim.
League in the Central Assembly; the leaders of the Congress Party and
the Muslim League In the Council of State; and also the leaders of '■ the
; Nationalist' Party and the European Group in the Assembly ; ..

Mr. Gandhi; and Mr. linnah as the recognized leaders of- the two main
political', parties.

.. -^ 'Rao,, .Bah to represent the Scheduled Castes. Maste,r Tara'

.Singh to represent the Sikhs\ ■ ■

' ■ ^Cwyer .and Appadorai, Speeches and Documents on the ■Indian Const! mtion.^V'^
'll, ■p,p.,557-6L. ■ ' ■

FRAMING OF INDIA’S CONSTITUTION

Both the Secretaiy of State’s statement and the Viceroy’s broadcast made
it clear that steps would be taken to give India an independent standing in
international affairs. External Affairs was to be placed in charge of an
Indian member of the Viceroy’s Executive Council. Fully accredited
representatives were to be appointed for the representation of India abroad;
and it was also proposed to appoint a British High Commissioner in
India, as in the Dominions, to represent Britain’s commercial and trade
interests.

The attention of the Congress all through the war years had primarily
been fixed on a war-time solution of the Indian problem. It was announced
by the Viceroy that the Cripps offer would remain open with reference to
the permanent constitution after the war, and its terms could be altered, if
at all, only in accordance with the unanimous wish of the Indian leaders.
It appeared that the Viceroy’s policy was designed to avoid the controversial
points w'hich had proved fatal to the Cripps Mission in 1942.

A modest beginning to be fitted into the framework of the existing
Constitution, as the Viceroy’s offer claimed it to be, there were nevertheless
in it points which impressed leaders like Nehru. The fact that the start of
the negotiations coincided with Churchill’s decision in favour of an immediate
election in Britain had a definite effect on India. Attlee, in a broadcast,
pledged his party to complete self-government for India as an immediate
development. Ernest Bevin, in an election speech, promised on behalf of
the Labour Party the abolition of the India Office and the transfer of Indian
affairs to the Dominions Office as a transitional measure.

Even without such encouragement from British Labour leaders, the Wavell
offer contained many features which appeared to be significant : the transfer
of external affairs, hitherto within the Viceroy’s portfolio, to an Indian
member of the Executive Council; the enhanced status of India’s diplomatic
representatives abroad from that of Agents-General, inferior in rank to
Ministers of even the smallest countries, to ambassadorial dignity; the
opportunity thus afforded to make friendly contacts with the other members
of the United Nations in their respective capitals; the appointment of a
British High Commissioner in India to represent British commercial
and financial interests — in all these moves was clearly implicit an
attempt at approximation in practice to the position of a full-fledged
Dominion.

The Viceroy’s efforts, nevertheless, ended in failure. Wavell’s insistence
on an equal number of Hindu and Muslim members in the Executive
Council did not deter the Congress leaders from seeking an agreement.
Another organization, however, the Hindu Mahasabha, vigorously protested
against the proposal to regard 250 million Hindus and 90 million
Muslims as on an equal footing.

_Oj?iections came not only from the Hindu Mahasabha. The issue on
which the conference bro|ce down related to the method of nomination of

HISTORICAL BACKGROUND

the Muslim members. Jinnah, on behalf of the Musliqji League, claimed
the exclusive right to nominate all the Muslim members of the Executive
Council. This claim was opposed by all the other parties. The position
at the time in the Muslim majority Provinces was that the Punjab, with a
Unionist Ministry under Khizr Hyat Khan, had broken away from
the League. In Bengal the Muslim League Ministry had been defeated
and had resigned, and the Province was under Governor’s rule. The North-
West Frontier Province had a Congress Ministry with Khan Sahib as
Premier. Only Assam and Sind had Muslim League Ministries, and the
former was backed by Congress support. Khizr Hyat Khan, the Premier
of the Punjab, insisted on the inclusion in the Central Cabinet of a Muslim
nominee of the Unionist Party. Nor would the Congress agree to giving the
Muslim League the sole and exclusive right to nominate Muslim members
to the Central executive; such a concession would be inconsistent with its
basic position as a non-communal body representing the freedom urge of
the country as a whole. The Viceroy himself had no hesitation in rejecting
Jinnah’s claim as unreasonable; but he felt that he could not go ahead
without cooperation from the Muslim League; and, since this was not
forthcoming, he declared that his efforts had failed and that he proposed
to take a little time to consider in what way he could best help India after
the failure of the conference’.

The general elections in Britain in the late summer of 1945 resulted in
a radical alteration of the situation from the standpoint of India’s prospects
of securing complete self-government. A Labour Government was installed
in office with a definite majority in the House of Commons for the first time
in the history of the party. Attlee, the new Prime Minister, took prompt
steps to make preliminary soundings regarding the resumption of negotiations
with India’s leaders. He had the advantage of having Nehru’s views on
some vital matters expressed in a discussion with B. N. Rau, who later
became the Constitutional Adviser to the Constituent Assembly.

Nehru was in favour of the reconstitution of the Central Government even
for the transitional period while the Constitution was being framed, but only
after fresh elections under the 1935 Constitution. The strength of the
Constituent Assembly, he suggested, could be fixed at 300 or even 400
members, though the task of actual drafting, he recognized, would have to
be entrusted to a committee appointed by the Assembly. He had no
objection to option being given to a provincial unit, in regard to accession
to the new Constitution, to await the completion of the deliberations of the
Constitution-making body, so as to avoid any trace of coercion in the
matter. At the same time, the greatest emphasis was to be on State activities
being explicitly provided for in the Constitution— in particular, planning,
industrial development, relief of unemployment and nationalization of key

P. Menon, The Transfer of Power in India, pp. 206-8.

FRAMING OF INDIANS CONSTITUTION

mdustries. Safegii|rds for the protection of minorities could include the
formation of an Upper House of the Central Legislature constituted on ' a
province-basis. As a possible alternative to the partition of , India, ''Nehru
agreed that the' expedient of creating half -provinces, with a certain, degree
of ^ autonomy in cultural and other matters for each half, on the lines, of the
half-cantons in Switzerland, merited consideration.

VII

The next definite step towards the formulation of an India policy was'
taken by the Labour Government through a statement made in Parliament
on February 19, 1946, with the approval of the Opposition. In this statement
it was announced that a special mission of Cabinet Ministers was to be
sent to India (consisting of Pethick-Lawrence, Secretary of State for India,
Stafford Cripps, President of the Board of Trade, and A. V. Alexander,
First Lord of the Admiralty)'.

Explaining the object of the Cabinet Mission in the House of Commons
on March 15, 1946, the Prime Minister, Attlee, said that the three Ministers
were going to India with the intention of using their utmost endeavours to
help her to attain freedom as speedily and fully as possible. What form of
government was to replace the existing regime was for India to decide; but
the desire of the British Government was, Attlee said, to help India to
set up forthwith the machinery for making that decision.

Attlee made it clear that it would be for India alone to decide for
herself whether to remain in the Commonwealth or not. He added:

I hope that the Indian people may elect to remain within the British
Commonwealth. I am certain that she will find great advantages in doing
so. In these days that demand for complete, isolated nationhood apart from
the rest of the world, is really outdated. Unity may come through the
United Nations, or through the Commonwealth, but no great nation can
stand alone without sharing in what is happening in the world. But if she
does so elect, it must be by her own free will The British Commonwealth
and Empire is not bound together by chains of external compulsion. It Is
a free association of free peoples. If, on the other hand, she elects for
independence, in our view she has a right to do so. It will be for us to help
to make the transition as smooth and easy as possibles

The Cabinet Mission arrived in India on March 24, and started discussions
inimediately with the various political party leaders and other individuals.
These' discussions were continued through April until the middle of May,
but a common basis of agreement, either on principle or procedure, proved
to be impossible of attainment. Jinnah and the Muslim League— which had

^ iSeiect Documents I, 45, pp. 177-8.

m. a Deb,, Vol 420, col 142h

HISTORICAL BACKGROUND

in the new elections to the Provincial Legislatures capturW practically the
entire Muslim membership throughout India— now took the opportunity
formally to define the territories which the contemplated Pakistan should
include. On April 10, Jinnah convened a meeting in Delhi of all the
members of the various Legislatures of India elected on the Muslim League
ticket. This meeting passed a resolution demanding that the sovereign and
independent State of Pakistan should include six Provinces — Bengal and
Assam in the north-east of India, and the Punjab, the North-West Frontier
Province, Sind and Baluchistan in the north-west. The resolution added
that there should be two constitution-making bodies, one for Hindustan and
one for Pakistan, for the purpose of framing separate constitutions for
these two countries.

The Congress was totally opposed to the division of the country. It was,
however, prepared for the maximum amount of local autonomy consistent
with the maintenance of the unity of the country. .Accordingly it suggested
that the future framework of the country’s Constitution be based on a
federal structure with a limited number of compulsory central subjects such
as defence, communications and foreign affairs; the federation would consist
of autonomous Provinces in which would vest the residuary subjects. The
Congress also suggested that there should be a list of “optional subjects”
in respect of which any Province or group of Provinces would be free to
accept federal executive and legislative jurisdiction. It was proposed that
on the completion of the constitution-making process a Province could elect
to stand out of the Constitution altogether, or federate on the essential
minimum subjects, or federate on the essential as well as the optional subjects.

On May 16, 1946, the Cabinet Mission put forward its own proposals.
In doing so the Mission observed :

After prolonged discussions in New Delhi we succeeded in bringing the
Congress and the Muslim League together in conference at Simla. There
was a full exchange of views and both parties were prepared to make
considerable concessions in order to try to reach a settlement, but it
ultimately proved impossible to close the remainder of the gap between the
parties and so no agreement could be concluded. Since no agreement has
been reached, we feel that it is our duty to put forward what we consider
are the best arrangements possible to ensure a speedy setting up of the new
constitution’.

It may be relevant to note here the various phases through which, starting
from the Cabinet Mission’s proposals, the decision to partition India was
reached, all in the course of a year. In its statement of May 16, 1946 the
Cabinet Mission was “convinced that there was in India an almost universal
desire outside the supporters of the Muslim League for its unity”. Neverthe-
less, the proposal of the Muslim League for partition was examined by the

^Select Documents

FRAMING OF I,NI>IA’S CONSTITUTION

Mission with' greal care, since it was impressed by the, ‘Very genuine and
acute anxiety of the Muslims lest they should find themselves subjected to
a perpetual Hindu majority .rule”. It rejected the claim for a separate and
fully independent sovereign State of Pakistan, consisting of the two areas
claimed by the League, namely, the Punjab, the North-West Frontier
Province, Sind and Baluchistan in the north-west and Bengal and Assam in
the north-east. The north-western area would comprise a non-Muslim,
population of 38 per ■ cent and the north-eastern area would have an even
larger minority of 48 per cent.

The Cabinet Mission therefore came to the conclusion :
a separate sovereign State of Pakistan on the lines claimed by the Muslim
League would not solve the communal minority problem; nor can we see
any justification for including within a sovereign Pakistan those districts of
the Punjab and of Bengal and Assam in which the population is
predominantly non-Muslim. Every argument that can be used in favour
of Pakistan can equally, in our view, be used in favour of the exclusion of
the non-Muslim areas from Pakistan. This point would particularly affect
the position of the Sikhs.

The Cabinet Mission therefore considered the question whether a smaller
Pakistan could be set up, comprising those areas in which the Muslims were
in a majority.

The Cabinet Mission declared :

We ourselves are also convinced that any solution which involves a radical
partition of the Punjab and Bengal, as this would do, would be
contrary to the wishes and interests of a very large proportion of the
inhabitants of these Provinces. Bengal and the Punjab each has its own
common language and a long history and tradition. Moreover, any division
of the Punjab would of necessity divide the Sikhs leaving substantial bodies
of Sikhs on both sides of the boundary. We have therefore been forced
to the conclusion that neither a larger nor a smaller sovereign
State of Pakistan would provide an acceptable solution for the communal
problem.

In addition to these practical difficulties, the Cabinet Mission found
weighty administrative, economic and military considerations against any
such proposal. The Mission also referred to the geographical fact that the
two halves of the proposed Pakistan State would be separated by some 700
miles. It came to the decision:

We are, therefore, unable tp advise the British Government that the power
which at present resides in British hands should be handed over to two
entirely separate sovereign States. ^

The Congress proposal of two groups of Provinces, one to have full
autonomy subject only to the ceding of jurisdiction over a minimum number
ui^central subjects, such as foreign affairs, defence and communications, and
a second group exercismg the option of expanding the jurisdiction of the

HISTORICAL ' BACKGROUND

Centre over a number of other subjects, particulariy economic and
administrative planning, seemed to the Mission to present considerable
constitutional disadvantages and anomalies.

Having . rejected the proposals of the Congress and the Muslim League,
the Cabinet Mission proceeded to. argue

the nature, of 'a solution which in our view would be just to the essential
claims of all parties and would at the same time be most likely -to bring
about a sfable and practicable form of Constitution for all India.

The Cabinet Mission recommended that the Constitution should take the
following basic form:

(1) There should be a Union of India, embracing both British India and the
States which should deal with the following subjects : Foreign Affairs, Defence
and Communications; and should have the powers necessary to raise the
finances required for the above subjects.

(2) The Union should have an Executive and a Legislature constituted from
British Indian and States’ representatives. Any question raising a major
communal issue in the Legislature should require for its decision a
majority of the representatives present and voting of each of the two
major communities as well as a majority of all the members present
and voting,

(3) All subjects other than the Union subjects and all residuary powers
should vest in the Provinces.

(4) The States will retain all subjects and powers other than those ceded to
the Union.

(5) Provinces should be free to form groups with Executives and Legislatures,
and each group could determine the Provincial subjects to be taken in
common.

(6) The Constitutions of the Union and of the groups should contain a
provision whereby any Province could by a majority vote of its Legislative
Assembly call for a reconsideration of the terms of the Constitution after
an initial period of ten years and at ten-yearly intervals thereafter.

In making these suggestions, the Cabinet Mission made it clear that its
object was not to lay down the details of a Constitution but to set in motion
machinery whereby a Constitution could be settled by Indians for Indians.
It had become necessary to make this recommendation because the Cabinet
Mission was satisfied that not until that was done was there ‘‘any hope of
getting .the two , major communities to join in the setting up of the
constitution-making machineiy”.

The Cabinet Mission not only lai(| down the basic form which the new
Constitution would take but also prescribed how the constitution-making
body would be set up, as well as the procedure it would follow. " In . setting
up the constitution-making machinery, the Cabinet Mission suggested;- that
the only: practicable course would be to utilize the recently elected ProvinCmi
Legislative Assemblies as electing bodies. . Anfl the Tairest and' most

68 FRAMING OF INDIA’S CONSTITUTION

practicable plan would be—

(a) to. allot to each. Province a total number of seats proportional to
its population, roughly in the ratio of one to a million, as the nearest
substitute for representation by adult suffrage ;

(b) to divide this provincial allocation of seats between the main
communities in each Province in proportion to their population;

(c) to provide that the representatives allotted to each community in a
Province should be elected by the members of that community in its
Legislative Assembly.

For these purposes the Cabinet Mission recognized only three main
communities in India, General, Muslim and Sikh, the General community
including all persons who were not Muslims or Sikhs. The actual elections
were to be by the method of proportional representation by means of the
single transferable vote.

As regards the procedure to be followed by the Assembly, the Cabinet
Mission divided the Provinces into three Sections: Section A consisted of
Madras, Bombay, the United Provinces, Bihar, the Central Provinces and
Orissa; Section. B consisted of the Punjab, the North-West Frontier Province
and Sind; and Section C of Bengal and Assam. The Chief Commissioners’
Provinces of Delhi, Ajmer-Merwara and Coorg were included in Section A
while British. Baluchistan: was included in Section B. The intention was
that all the representatives would first meet in. New Delhi for a preliminary
session which would decide the. general order of business, elect a Chairman
and other officers and set up an Advisory Committee on the rights of citizens,
minorities and tribal and excluded areas. Thereafter the provincial
representatives would divide up into the Sections A, B and C. These Sections
would proceed to settle the provincial constitutions for the Provinces included
in each Section and would also decide whether any Group constitution should
be set up for those Provinces and if so with what subjects the Group should
deal. The representatives of the Sections and the Indian States would
reassemble thereafter for the purpose of settling the Union Constitution. As
soon as the new constitutional arrangements came into operation, it would
be open ta any Province to come out of any Group in which it had been
placed, on such a decision being taken by the Legislature of the Province
after the first general election under the new Constitution.

Any proposal varying any of the basic features of the Constitution or
raising any major communal issue would require a majority of the
representatives present and voting of each of the two major communities.

Regarding the Indian States, the Cabinet Mission’s plan generally
cofltemplated that the proposed Union of India would have the same
jurisdiction in Indian States as in the Provinces. Recognition was, however,
given to the fact that their position was totally different from that of British
Biuia. The Cabinet Mission expressed the view that with the grant of
independence to British feidia, whether inside or outside the Commonwealth,

HISTORICAL BACKGROUND

the old relationship between the Rulers of the States and the British Crown
would no longer be possible. It added :

Paramountcy can neither be retained by the British nor transferred to the

new Government.

The Mission noted the fact that the representatives of the States were
ready and willing to cooperate in the new development of India. The
precise form of such cooperation would be a matter for negotiation during
the building up of the new constitutional structure, though it need not be
identical for all the States. The position of the States was summed up as
follows :

(a) The States would retain all subjects and powers Other than those
ceded to the Union;

(b) it was the intention that the States would be given in the final
Constituent Assembly appropriate representation which would not,
on the basis of the calculation of population adopted for British
India, exceed 93 ;

(d) after the Provincial Constitution and the Group Constitutions, if
any, had been settled, the representatives of the Sections and the
Indian States would reassemble for the purpose of settling the Union
Constitutionh

Differences in regard to interpretation immediately started on various
provisions contained in the Cabinet Mission’s statement. The main point
raised at this stage by the Congress was in relation to the procedure
envisaged in the Mission’s plan that, after the preliminary session of the
Assembly, it would divide up into Sections, and that whether they liked it
or not, the representatives of Sind and the North-West Frontier Province
would atong with those of the Punjab be included in Section B while Assam
would have to go into Section C along with Bengal. The clarification that
questions in the Sections relating to the Provincial Constitutions and the
question of grouping would be decided by a majority vote made the position
worse from the point of view of the Congress. The Congress urged that any
compulsion making it obligatory on a Province to sit in a particular Section
as outlined in the statement would be contrary to the basic principle laid
down in the statement itself that Provinces would be free to form Groups ;
and it maintained that a Provincial Assembly might give a mandate to its
representatives not to enter any Group or a particular Group or Section.
The Congress did not disguise its ajjprehensions that the relatively smaller
number of the representatives of Assam and the North-West Frontier
Province ran the danger of being swamped by the much larger majorities
of Bengal and the Punjab if they sat together in Sections.

'Select Documents I, 48(i), pp. 209-18.

MAMING OF INDIA’S CONSTITUTION

As Sections B and C have been formed it is obvious that one Province will
play a dominating role in the Section, the Punjab in Section B and Bengal
in Section C, It is conceivable that this dominating Province may frame
a Provincial Constitution entirely against the wishes of Sind or the North-
West Frontier Province or Assam. It may even conceivably lay down rules,
for elections and otherwise, thereby nullifying the provision for a Province
to opt out of a group. Such could never be the intention as it would be
repugnant to the basic principles and policy of the scheme itself'-.

There were other points too which the Congress raised; but differences were
in the main concentrated on the issue of whether or not a Province could
initially refuse to join the Section in which it was placed. The Cabinet
Mission in its statement of May 25, 1946^ maintained that the interpretation
placed by the Congress resolution to the effect that the Provinces could in
the first instance make the choice whether or not to belong to the Section
in which they were placed did not accord with the Mission’s intentions.

One of the basic demands of the Congress already mentioned was that
the substance of independence should be granted in the immediate present
and no plan which failed to do this would find acceptance. On principle
there was no difference between the Cabinet Mission and the Congress on
this issue. The Cabinet Mission had said :

It is agreed that the interim Government will have a new basis. That basis
is that all portfolios including that of the War Member will be held by
Indians and that the members will be selected in consultation with the Indian
political parties. These are very significant changes in the Government of
India, and a long step towards independence. His Majesty’s Government
will recognize the effect of these changes, will attach the fullest weight to
them, and will give to the Indian Government the greatest possible freedom
in the exercise of the day-to-day administration of India,

As the Congress statement recognizes, the present Constitution must continue
during the interim period; and the interim Government cannot therefore be
made legally responsible to the Central Legislature. There is, however,
nothing to prevent the members of the Government, individually or by
common consent, from resigning, if they fail to pass an important measure
through the Legislature, or if a vote of no-confidence is passed against
them®.

The Viceroy started negotiations with the various political parties,
particularly the Congress and the Muslim League, on the question of the
formation, of a Coalition Ministry on these lines. By June 15, the Viceroy
came . to -the conclusion that agreement' between the two parties was
impossible of attainment, and the next day the Cabinet Mission issued a

^Select Documents I, 50(i), p. 251.

I, 51, p. 258.

Hbld„ p. 259. «*

HISTORICAL BACKGROUND

Statement announcing that the Viceroy proposed to form an Executive
Council, consisting of fourteen members apart from the Viceroy*. The
names of these fourteen were also published. One feature of the list was
that it contained six Congressmen and five members of the Muslim League;
and that none of the Congress members was a Muslim. The announcerhent
added:

In the event of the two major parties or either of them proving unwilling to
join in the setting up of a coalition Government on the above lines, it is the
intention of the Viceroy to proceed with the formation of an interim
Government which will be as representative as possible of those willing to
accept the statement of May 16th.

Meanwhile developments had occurred in regard to the long term plan
of the Cabinet Mission. After prolonged deliberations both the Congress
and the Muslim League accepted the Cabinet Mission’s plan but both
with reservations of their own. At this stage, neither appeared to
have accepted the basic proposals in the spirit in which the Cabinet Mission
had iatended the plan to be implemented. The Congress took some time
to reach a decision and prolonged correspondence went on on various issues
on wMch clarification was being sought. But it was clear that on the
question of sitting in Sections, which was sought to be made compulsory by
the Cabinet Mission, the Congress was going to take a stiff attitude.

Oa June 6, 1946, the Council of the League passed a resolution declaring :
In order that there may be no manner of doubt in any quarter the Council
of the All India Muslim League reiterates that the attainment of a goal of
a complete sovereign Pakistan still remains the unalterable objective of the
Muslims in India for the achievement of which they will, if necessary, employ
every means in their power and consider no sacrifice or suffering too great®.

The Council accepted the Cabinet Mission’s plan merely because it
considered that the basis and the foundation of Pakistan were inherent in
the plan by virtue of the compulsory grouping of the “six Muslim Provinces”
in Sections B and C. The resolution added that the Muslim League would
keep in view the “opportunity and right of secession of Provinces or Groups
from the Union”, which according to the League had been provided in the
plan “by implication”. The willingness of the League to cooperate with
the constitution-making machinery was based on the “hope that it would
ultimately result in the establishment of complete sovereign Pakistan”.

The uncertainty of the situation became more apparent in July. The
announcement of the list of Executive Councillors came on June 16*. The
reactions of the Congress and of th^ Muslim League to this decision were
different. The Congress, having tried to get a Nationalist Muslim in its

^Select Documents I, 57, pp. 276-7.

nbid., I, 53, p. 263-4.

Hbid., I, 57, pp. 276-7.

FRAMING OF INDIA’S CONSTITUTION

quota of Executive Councillors and failed in the attempt, adopted a resolution
on June 25 afflnning its decision to join the Constituent Assembly; but it
rejected the Viceroy’s proposal for the formation of an interim Executive
Council. In this resolution the Working Committee merely mentioned
that

taking the proposals as a whole, there was sufficient scope for enlarging and
strengthening the Central authority and for fully ensuring the right of a
Province to act according to its choice in regard to grouping.

Carefully avoiding all reference to the requirement of sitting in Sections,
this merely paraphrased what was implicit in the Cabinet Mission’s plan,
so that it could not be said that the resolution contained anything in the
nature of reservations inconsistent with the plan. But the rejection of the
Viceroy’s proposal to reconstitute the Executive Council was clear and
definite. The Working Committee said :

In the formation of a provisional or other Government Congressmen can
never give up the national character of the Congress or accept an artificial
parity, or agree to a veto of a communal grouph
On the other hand, the Working Committee of the Muslim League decided
to agree’ to join the interim Government on the basis of the statement
of June 16.

Faced with a dilemma, the Cabinet Mission issued a statement or, June
26, in which it was stated:

. (a) that further negotiations on the formation of an interim Governnent
should be adjourned for a short time ;

: (b) that until a new interim Government was set up, the Viceroy wodd
form a temporary care-taker Government of officials ; and
(c) that during this interval elections to the Constituent Assembly would
take place*.

This statement evoked an immediate response from the Muslim League.
Writing , to the Viceroy two days later, Jinnah put forward the view that,
according to all the relevant documents, particularly the two statements of
the Cabinet Mission of May 16 and 25, the long term plan and the formation
of the interim Government formed one whole, each constituting an integral
part of the whole scheme. He wanted therefore that the formation of the
interim Government having been postponed, elections to the Constituent
Assembly should also be deferred*. The Viceroy could not, however, accept
this suggestion : naturally, because the whole purpose of the Cabinet Mission’s
plan was that the future Constitution should be framed without avoidable
delay..'

’^Select Documents I, 5%, pp. 278-9.

^G'Kytt and Appadorai, Speeches and Documents on the Indian Constitution,
Vol. II, pp. 609-10.

^Select Documents I, 59, pp. 280-1.

‘‘Ibid., I, 60(ii), pp. 283-^.

HISTORICAL BACKGROUND

Dramatic developments took place in July. The first complication was a
statement by Nehru on the issue of grouping. In a Press Conference held
on July 10, he said :

The big probability is that, from any approach to the question, there will
be no grouping. Obviously, Section A will decide against grouping. Speaking
in betting language, there is 4 to 1 chance of the North-West Frontier
Province deciding against grouping. Then Group B collapses. It is highly
likely that Assam will decide against grouping with Bengal, although I would
not like to say what the initial decision may be, since it is evenly balanced.
But I can say with every assurance and conviction that there is going to be
finally no grouping there, because Assam will not tolerate it under any
circumstances whatever. Thus you see this grouping business approached
from any point of view does not get on at all'.

The Cabinet Mission had. of course, made a clear distinction between
sitting in Sections, which was compulsory, and formation of Groups, which
was voluntary; and it was obvious that Nehru was referring to the probability
that Assam would not agree to sit in the same Section as Bengal,
nor the North-West Frontier Province in the same Section as the Punjab.

This attitude was gravely disturbing to the Muslim League, which used
this statement as an argument for withdrawing support from the whole
scheme. On July 27, 28 and 29 it held a series of meetings, and passed
resolutions which put the whole of the Cabinet Mission’s plan into jeopardy.
The first of these tw’O resolutions contained a long tirade against the Viceroy
and the Congress. The Viceroy and the Cabinet Mission were accused of
dishonesty in failing to form an interim Government as outlined in the
statement of June 16. The resolution then went on to express the view that
the Congress had not accepted the Cabinet Mission’s plan, their acceptance
being conditional on their own interpretation ; it maintained that the policy
of the British Government was one of

sacrificing the interests of the Muslim nation and some other weaker sections
of the people of India, particularly the Scheduled Castes, to appease the
Congress.

The resolution then withdrew the Muslim League’s acceptance of the
Cabinet Mission’s proposals. The League passed another resolution calling
on the Muslims of India to respond to a programme of direct actiotf— the
first results of which were the Calcutta riots of August 1946.

Meanwhile the political situation in India had reached a stage when both
the British Government and the Viceroy felt that it would no longer be
possible to defer the transfer of power to Indian hands. In accordance
with the statement of June 16, the British were committed to proceeding with

'Gwyer and Appadorai, Speeches and Documents on the Indian Constitution,
Vol. II, p. 613.

^Select Documents I, 60(iv) and (v), pp. 284-6. See also Gwyer and Appadorai,
Speeches and Documents jn the Indian Constitution, Vcf. 11, pp. 618-21,

FRAMING OF INDIA’S CONSTITUTION

the formation of an Interim Government which would be as representative
as possible of those willing to accept the statement of May 16. The Muslim
League having withdrawn its acceptance of the statement, the Congress
party remained the only one major political party which had accepted the
May 16 plan. The Viceroy issued on August 12 a Press Communique
announcing that he had invited the President of the Congress (Jawaharlal
Nehru) to form the provisional Government and that the latter had accepted
the invitatiotf. At the same time, at the Viceroy’s instance, Nehru agreed
to approach Jinnah and invite his cooperation in the formation of the
interim Government. Nothing tangible emerged from the discussions,
however, and the new Executive Council, consisting entirely of nominees of
the Congress, took oflBce on September 2, 1946^

Earlier, in the summer of that year, after the Congress and the Muslim
League had passed their respective resolutions accepting the Cabinet Mission’s
plan, elections had been held to the Constituent Assembly and these elections
had been completed in July even before the League’s decision to withdraw
its acceptance of the plan. The Sikhs had not at this stage elected their
representatives; this they did after August, 1946. The Congress was anxious
to take steps to convene die Constituent Assembly. It had been hoped at
one time to convene the Assembly in August; but this proved impossible and
Nehru thought of convening it, first in mid-September and then late in
October. But the Viceroy was anxious that efforts should be made to
persuade the Muslim League also to join; and in order to give time for
the necessary negotiations, it was eventually decided to summon the
Assembly on December 9, 1946’.

Nehru’s talks with Jinnah having failed, the Viceroy undertook further
negotiations. He was able to persuade Jinnah to nominate five members to
the interim Government from his party, without any further conditions or
stipulations*. Nehru and the Congress representatives pointed out that the
representatives of the Muslim League could not join the Interim Government
without a formal acceptance of the proposals of the Cabinet Mission and
the League’s agreement to cooperate in the work of constitution-making
within the framework of the plan. On this point the Viceroy gave Nehru
a categorical assurance. He said :

1 have made it clear to Mr. Jinnah, whom I have seen today, that the Muslim
League’s entry into the interim Government is conditional on the acceptance
of the scheme of the Cabinet Delegation. . .

As I told you, Mr. Jinnah has assured me that the Muslim League will come

‘V. P. Menon, The Transfer of Power in India, p. 293.

"Gwyer and Appadorai, Speeches and Documents on the Indian Constitution,
Vol. II, p. 643.

^Select Documents I, 68(i), p. 386.

'■’’Gwyer and Appadorai, Speeches and Documents on the Indian Constitution,
Vol. n, p, 653. '

HISTORICAL BACKGROtFNB

into ttie interim Government and the Constituent Assembly with the intention
of cooperatingh

The Muslim League members were sworn in on October 26, 1946.

■ Jinnah hads however, no intention of getting the Muslim League to
participate in the Constituent Assembly. The Viceroy spoke to him about
this and also .wrote to him on November 5 reminding ' him of his obligationl

Meanwhile, the Viceroy was also making efforts to persuade the Congress
categorically to accept the British Government's interpretation of the
provisions of the Cabinet Mission's statement of May 16 on the issue of
sitting in Sections and formation of Groups of Provinces. These provisions,
it may be recalled, prescribed :

(a) that the Provinces would have to sit in Sections as laid down ;

(b) that the Provincial Constitutions as well as Group Constitutions
would be framed in these Sections by majority vote ;

(c) that the only procedure available for any Province to '‘opt out” of
a Group would be by a resolution of the new Provincial Legislature
under the Constitution so framed after the first general elections.

The Congress felt that it had gone to the farthest possible extent according
to its own view of the statement ; Nehru and the Congress had accepted
the arrangement for sitting in Sections to consider the question of the
formation of Groups of Provinces. On September 7, 1946, Nehru made
a conciliatory appeal in a broadcast for the termination of the deadlock :
An equally urgent and vital task for us is to conquer the spirit of discord
that is abroad in India. Out of mutual conflict we shall never build the
house of India’s freedom of which we have dreamt so long. All of us in
this land have to live and work together, whatever political developments
might take place. Hatred and violence will not alter this basic fact, nor
will they stop the changes that are taking place in India.

The Congress had also maintained that, if either in regard to Grouping
or any other disputed point of procedure agreement could not be reached,
the proper course would be to refer it to an impartial tribunal like the
Federal Court. On the other hand, the Viceroy wanted the Congress
categorically to accept

the intention of the statement of May 16 that Provinces cannot exercise any
option affecting their membership of the Sections or of the Groups if formed,
until the decision contemplated in paragraph 19{vlil) of the statement of 16th
May is take,ii by the new Legislature after the new constitutional arrangements
have come into operation and the first general elections have been heid‘\

■ This the , Congress refused to ^do*. Meanwhile, Jinnah had further

"^Gwyer and Appadoral,. Speeches and Documents on the Indian ■'Constitution,
VoL II, pp. 653-4.

HMd,, p. 655.

®V. P. Menon, The Transfer of Power in India, p. 302.

^Ibid,,p:SQ4,

FRAMING OF INDIA’S CONSTITUTION

discussions in, September with B. N.'Rau on various matters relating to the
functioning of the Constituent Assembly. He asked for replies to ten
questions, on the procedure that the Assembly was likely to follow, before
determining^ the final attitude of the Muslim League. Giving Ms personal
interpretation of the rules tentatively formulated, B. N. Rau quoted the
words of a British statesman on the eve of the Irish settlement after the
■first; world war :

Now and again in the affairs of men there comes a moment when courage
is safer than prudence, when some great act of faith touching, the hearts of
men and stirring their emotions achieves a miracle that no art of statesman-
ship can compass. Such a moment may be passing before our eyes now as
we meet.

In his letter answering Jinnah’s questions, he pointed out that a
constitution was only a means to an end ; when by working together as a
team, the various parties realized that the ends were common, there would
be little difficulty in agreeing upon the means\

Jinnah made his position clear in the middle of November. In a long
letter to the Viceroy he repeated the charge that the Congress had not
accepted the Cabinet Mission’s plan of May 16. He took the opportunity
to impose a further condition : it would not be sufficient to get the Congress
to agree to the fundamentals of the plan “in the clearest possible language”:
it would also be necessary

to devise ways and means by which the proposals could be implemented and
enforced by His Majesty’s Government if the Congress break their word.

Jinnah then referred to the communal riots which Iiad broken out in the
country, and suggested that the Viceroy should immediately announce the
postponement of the Constituent Assembly sine die^,

Nehru was definitely of the opinion that plans for summoning the Assembly
should be put through in spite of the fact that the attitude of Jinnah and
the Muslim League at the time was one of non-cooperation. On November
20 the Viceroy issued an invitation to all members to attend the first meeting
of the Assembly which, it was stated, would be held at 11 A.M. on the
9th December, 1946 at the Constituent Assembly Chamber in the Council
House, New Delhi®...

Keeping in view the decision of the Muslim League not to participate in
the Assembly, B. N. Rau devoted some thought to the consideration of the

possible legal effect of such non-participation. The plan itself did not

prescribe a quorum for meetings, either of the Sections or of the Union

Constituent Assembly. But this did^not mean that even half a dozen

members could get together and discharge the functions of the Assembly
or' its. SectiQns.. 'B.' 'N.'Rau said,- ■ quoting' Halsbury, that the acts of a

'^Select Documents I, 63(iv)(b), pp. 318-20.

I, 63(vi), pp. 323-5.

Hbid,, I, 68{v), p. 388. "

HISTORICAL BACKGROUND

corporation, other than a trading corporation, were those of the major part
of the corporations, corporately assembled. In other words, in the absence
of special custom or special provision in the constitution the major part
must be present at a meeting, and of that major part there must be a majority
in favour of the act or resolution contemplated. If this principle was applied
to Sections B and C the result would be that, as the absence of the Muslim
League would reduce these Sections to less than half their strength, a valid
meeting of either would become impossible. The Union Constitution was
to be settled after the several Sections had met and settled the Provincial
Constitutions and the Group Constitutions, if any. If two of the three
Sections could not meet at all, the settling of the Union Constitution would
be delayed indefinitely. Further, Rau pointed out, if the several provincial
contingents were considered to be “select bodies” or “definite integral parts”
of the Union Constituent Assembly, the rule would make even a preliminary
meeting of the Assembly impossible. Rau added that it was possible that
the League might wish this point to be adjudicated upon by the Federal
Court*.

On the other hand, Munshi’s contrary opinion was clear and definite.
His conclusions were :

(a) the Constituent Assembly was representative of the population of
India as a whole and not a conference of representatives of certain
groups ;

(b) the Constituent Assembly was not a body of delegates representing
different communities, but an organ of the sovereign people ;

(c) the withdrawal of a member or members — even of a whole group
of members — could not prevent the Constituent Assembly from
discharging its duties ;

(d) the Constituent Assembly could therefore function by a majority
of its members present until a quorum was fixed by its own rules”.

The political implications of the abstention of the Muslim League were
considered by the Viceroy and the Secretary of State. The latter was convinced
that any assurances on the question of grouping would not satisfy Jinnah,
who wanted not only an assurance as to the Cabinet Mission’s intentions,
but also an assurance that those intentions would be enforced by His
Majesty’s Government. This would amount to exercising control over the
working of the Assembly, and an assurance of this kind could not therefore
be given’.

Nevertheless, the Secretary of State felt that one more attempt should be
made to bring about a settlement between the major political parties.
Accordingly on November 26, the Viceroy conveyed to Nehru, Jinnah, Liaqat
Ali Khan and Baldev Singh an invitation from the British Government for

^Select Documents I, 69(i), pp, 3S9-^90,

I, 69(nX pp. 390-2. '

^V. P. Menoii, The' Transfer of Power in India, p. 352.

FRAMING OF INDIANS CONSTITUTION

discussions, in. London.' The discussions did not. lead to any , settlement ■ buL
with a view to allaying the fears of the Muslim League and enabling it to
participate in the Constituent Assembly, the British Prime Minister, in a
statement issued on December 6, 1946, made the position of his Government
clear on the issue of Grouping and Sections :

The Cabinet Mission have throughout, maintained the view that the decisions
of the Sections should, in the absence of an agreement to .the contrary, be
taken by a simple majority vote of the representatives in the Sections. This
view has been accepted by the Muslim League, but the Congress have put
forward a different view. They have asserted that the true meaning of the
statement, read as a whole, is that the Provinces have the right to decide
both as to Grouping and as to their own Constitution.

His Majesty’s Government have had legal advice which confirms that the
statement of May 16 means what the Cabinet Mission have always stated
was their intention. This part of the statement, as so interpreted, must,
therefore, be considered an essential part of the scheme of May 16 for
enabling the Indian people to formulate a new Constitution which His
Majesty’s Government would be prepared to submit to Parliament. It should,
therefore, be accepted by all parties in the Constituent Assembly.

It is, however, clear that other questions of interpretation of the statement
of May 16 may arise and His Majesty’s Government hope that if the Council
of the Muslim League are able to agree to participate in the Constituent
Assembly, they will also agree, as have the Congress, that the Federal Court
should be asked to decide matters of interpretation that may be referred to
them by either side and will accept such a decision, so that the procedure,
both in the Union Constituent Assembly and in the Sections, may accord
with the Cabinet Mission’s plan. On the matter immediately in dispute, His
Majesty’s Government urge the Congress to accept the view of the Cabinet
Mission in order that the way may be open for the Muslim League to
reconsider their attitude. If in spite of this reaffirming of the intention of
the Cabinet Mission, the Constituent Assembly desires that this fundamental
point should be referred for decision of the Federal Court, such a reference
should be made at a very early date. It will then be reasonable that the
meetings of the Sections of the Constituent Assembly should be postponed
until the decision of the Federal Court is known.

There has never been any prospect of success for the Constituent Assembly
except upon the basis of an agreed procedure. Should a Constitution come
to be framed by a Constituent Assembly in which a large section of the
Indian population had not been represented, His Majesty’s Government could
not, of course, contemplate— as the<Dongress have stated they would not
contemplate— forcing such a Constitution upon any unwilling parts of the
countryh

^Select Documents I, 65(w), pp. 347-S.

HISTORICAL BACKGROUND

This statement drew a sharp reaction from the Congress. The Working
Committee of the Congress, meeting on December 22, passed a resolution
declaring that the point at issue was not merely one of procedure but the
fundamental principle of provincial autonomy, and whether or not a Province
or. part should be coerced against its will. (Later on however the resolution
referred to this as a “doubtful point of procedure”), Further, the statement
had made it clear that, while it was open to the Constituent Assembly to
refer the issue to the Federal Court if it so chose, the British Government
would not be bound by the opinion of the Court if such opinion went against
the view taken by that Government ; nor was the Muslim League willing
to accept judicial opinion on the issue.

In the circumstances, a reference to the Federal Court became “totally
uncalled for and unbecoming and unsuited to the dignity of either the
Congress or the Federal Court”. At the same time, the Working Committee
wished to adopt an attitude of conciliation because

the Congress seeks to frame, through the Constituent Assembly, a
Constitution of a free and independent India with the willing cooperation of
all elements of the Indian people. The Working Committee regret that the
Muslim League members of the Constituent Assembly have refrained from
attending its opening session. . . The Committee will continue their efforts
to make the Constituent Assembly fully representative of all the people of
India and trust that members of the Muslim League will give their cooperation
in this great task. In order to achieve this, the Committee have advised
Congress representatives in the Assembly to postpone consideration of
important issues to a subsequent meeting\

On December 13, Nehru moved the Objectives Resolution on the Assembly’s
aims and objects in the following terms ;

(1) India would be an independent sovereign republic, free to draw up
for her future governance a Constitution ;

(2) British India, the Indian States and other parts of India outside
British India and the States, as well as such other territories as were
willing to.be constituted in the independent sovereign India, would
be a Union of them all ;

(3) these territories, with their present boundaries or such others as may

be determined by the Constituent Assembly and thereafter according
to the law of the Constitution, would possess and retain the status
of autonomous units, together with residuary powers, and exercise all
powers and functions of government and administration, except those
vested in or assigned to the Union, or were inherent or implied in
the Union ; *

(4) all power and authority of independent sovereign India, its constituent
parts and organs of government, would be derived from the people ;

^Select Documents I, 65(v), pp. 348-5Z

FRAMING OF INDIA’S CONSTITUTION

(5) there would be guaranteed to all the people of India, justice, social,
economic, and political; equality of status, of opportunity and before
the law ; freedom of thought, expression, belief, faith, worship,
vocation, association and action, subject to law and public morality ;
and

(6) adequate safeguards would be provided for minorities, backward
and tribal areas, and depressed and other backward classes^.

The resolution evoked a sharply worded protest from the Muslim League;
it was described as “illegal, ultra vires and not competent of the Constituent
Assembly to adopt”.

By taking these decisions in the Constituent Assembly and by appointing a
packed committee consisting of individuals chosen by the Congress, the
Congress has already converted that truncated Assembly into a rump and
something totally different from what the Cabinet Mission’s statement had
provided for.

On December 21, consideration of this resolution was deferred, in the hope
that it might be possible to persuade the Muslim League to join the Assembly
before long. A further step in the direction of conciliation was taken by
the Congress when the AU-India Congress Committee adopted a fresh
resolution on January 6, 1947 ; while maintaining that there must be no
interference whatsoever by any external authority, and no compulsion of
any Province or part of a Province by another Province, it said :

The All India Congress Committee is anxious that the Constituent Assembly
should proceed with the work of framing a Constitution for free India with
the goodwill of all parties concerned and with a view to removing
the difficulties that have arisen owing to varying interpretations, agree to
advise action in accordance with the interpretation of the British
Government in regard to the procedure to be followed in the
Section®.

The Muslim League postponed a decision on its future course of action
until January 31, by which time the Objectives Resolution had been passed.
On that day the Working Committee of the League adopted a lengthy
resolution, again putting forward the argument that the Congress had not
accepted &e “correct” interpretation in regard to Grouping. It called upon
the British Government to declare that the constitutional plan formulated by
the Cabinet Mission, as announced in the statement of May 16, 1946. had
“failed because the Congress after all these months of efforts have not
accepted” the statement. The constitution of the Constituent Assembly
and its proceedings and decisions it held, were ultra vires, invalid, and
illegal, and it should be forthwith dissalved’.

Hie Muslim League’s prompt acceptance of the plan in June 1946 was

'C. A. Deb., Vol. I, p. 57.

^Select Documents I, 65(vii), pp. 353-9.

’Ibid., I, 65(vi), pp. 352->.

HISTORICAL BACKGROUND

motivated by the fear that, on any other basis it would be left out of the
interim Government. The League’s withdrawal of this acceptance in July
enabled the Congress to form a Ministry. The effect of this miscalculation
was soon neutralized by the admission of nominees of the League into the
Ministry. The Muslim League had to give in on two points to get into
the Cabinet. It had to agree to the Congress nominating a Muslim member,
and thereby give up the right, long claimed, exclusively to nominate all
Muslim members of the Cabinet; and it had to undertake to join the
Constituent Assembly. This undertaking was not implemented ; the League’s
final stand not to cooperate with the Assembly came in January 1947, after
it was sure that it could safely take this stand without any prejudice to the
continuance of its nominees in the Executive.

On February 1, 1947, the Viceroy told the Congress that the Congress
was in a position to demand the resignation of the Muslim League members
from the interim Government ; but (he added) whether it would be possible
to carry on the administration of the country more effectively with the League
in active opposition was a matter which required careful consideration'. The
Viceroy was always of the opinion that, with widespread communal tension
in the country, the best safeguard lay in a coalition Government.

Matters came to a head, with widening differences between the Congress
and the Muslim League. The Congress made it clear that the Viceroy, who
had assured Nehru that it was a condition of the participation of the Muslim
League in the interim Government that they would also join the Constituent
Assembly, should secure the withdrawal of the League from the interim
Government as a consequence of their refusal to cooperate; otherwise the
Congress members would themselves resign'. The Viceroy was not in favour
of such a course; he wanted one more effort to be made to bring the Muslim
League into the Constituent Assembly. The withdrawal of the Congress
from the interim Government would, it was felt, lead to even more serious
difficulties, especially in view of the communal situation in the country
which had greatly deteriorated.

In the face of this difficult situation, the British Government decided to
act with courage. In a statement issued by the Mme Minister on February
20, 1947, a definite date was set by which British power would terminate
in India. In view of the Constituent Assembly’s inability to function on the
plan originally laid down by the Cabinet Mission, the British Government
desired to hand over its responsibility to authorities established by a
Constitution approved by all parties in India; but, with no clear prospect
that such a Constitution and such authorities would emerge and in view
of the danger of a state of uncertainty continuing indefinitely, the necessary
steps would be taken to effect the ?ransfer of power to responsible Indian

'V. P. Menon, The Transfer of Power in India, p. 335.

VWd., p. 337.

FRAMING OF INDIA’S CONSTITUTION

hands by a date not later than June, 1948. Such transfer, declared the
Prime Minister, would be to a Government resting on the sure foundations
of the support of the people and capable of maintaining peace and
administering India with justice and efficiency. The Government, therefore,
agreed to recommend to the British Parliament a Constitution worked out
in accordance with the proposals of May 16, 1946, made by a fully
representative Constituent Assembly. But in the absence of such a
Constitution, the British Government would have to consider to whom the
powers of the Central Government in British India should be handed over
cn the due datc—whether as a whole to some form of Central Government
for British India, or^ in some areas to the existing Provincial Governments,
or in such other way as might seem most reasonable and in the best interests
of the Indian people'.

Nehru welcomed this declaration as a wise and courageous decision,
bringing reality and a certain dynamic quality to the Indian situation. He
urged the Constituent Assembly to work with greater speed, so that a new
and independent India might take shape and be endowed with a Constitution
worthy of her. The appeal was renewed to those who had kept aloof to be
partners in this joint and historic undertaking, casting aside fear and suspi-
cion, and it was coupled with the assurance that the Constituent Assembly,
however constituted, could only proceed with its work on a voluntary
basis. There could be no compulsion, except the compulsion of events.
With the withdrawal of British rule, the responsibility for the governance
of India must inevitably rest on her people and their representatives
alone. Such a responsibility, he hoped, would be undertaken by ail parties to
find integrated solutions of India’s problems. Concluding, Nehru observed:
The British Government on behalf of their people have expressed their
goodwill and good wishes to the people of India. We have a long past of
conflict and illwilL But we earnestly hope that this past is over. We look
forward to a peaceful and cooperative transition and to the establishment
of close and friendly relations with the British people for the mutual
advantage of both countries and for the advancement of the cause of peace
and freedom all over the world®.

Even after the Prime Minister’s statement of February 20, hopes were
entertained that the complete partition of the country might be averted
through certain built-in-devices in the Constitution.

The Constitutional Adviser pointed out in a note to the President that
the essence of the Cabinet Mission’s plan was to maintain a single Centre
for the administration of a minimum number of subjects on an all-India
basis, while the remaining subjects were to be dealt with on a regional
basis. Applying the basic principle of fhe same plan as in the Provinces, he

^Select Documents I, 84(i), pp. 515-8.

Hbid., I, 84(11), pp. 518-9.

HISTORICAL BACKGROUND

suggested that where a Province contained distinct regions— racial, religious,
linguistic— most of the provincial subjects could be dealt with on a regional
basis and only the remaining few on a provincial or joint basis. He
referred to the administrative arrangements in force in the United Kingdom
where certain subjects were dealt with by common Ministers for all parts
of the United Kingdom; while for Scotland the administration was in the
hands of the Secretary of State for Scotland who held charge of the
departments of health, agriculture, police, prisons and education. Even in
the sphere of legislation, there was, he said, some measure of regionalism
in the United Kingdom. A somewhat similar plan was to be found in the
Russian Constitution. The central departments (called the People’s
Commissariats) were in two classes, the all-Union departments and the
regional departments. The subjects requiring to be dealt with on an all-
Union basis were administered by the former, and subjects requiring
regional administration by the latter.

Working on these analogies, B. N. Rau proposed that in the Provinces
there might be some provincial subjects such as education, agriculture and
local self-government which could be termed regional subjects, while a few,
such as finance, irrigation, the High Court, etc. could be joint subjects.
The Governor of a Province could then have a single Cabinet, one set of
Ministers exclusively to advise him on the regional subjects of a sub-
region and another set similarly to advise him in regard to regional subjects
of a different sub-region. On joint subjects, the entire Cabinet with both
sets of Ministers could come together to advise the Governor. At the
Centre, under this proposal, there would be a similar division of departments
into two classes : (1) all-India departments including defence, foreign
affairs, communications and finance and (2) regional departments
comprising the rest.

In his argument in favour of such a plan, the Constitutional Adviser
indicated that the following advantages would flow from its implementation :

(i) it might succeed in healing the existing differences, whether at the
Centre or in the Provinces ;

(ii) it would reveal the difficulties, if any, in more far-reaching schemes
of partition or separation, including the Cabinet Mission’s plan ;

(iii) if the redistribution proved inconvenient in any particular, it could
be immediately amended by amending the rules of business; if necessary
it could be entirely scrapped and the status quo ante restored’.

A major point that remained to be settled related to the procedure that the
Constituent Assembly should follow in the light of the British Prime Minister’s
two statements, one on December 1946 and the second on February 20,
1947. B. N. Rau had a discussion with the President of the Assembly,
Rajendra Prasad, on March 9, 1947 and recorded the results in a note.

‘B. N. Rau, India’s Constitution in the Making, 2nd edn., pp. 27-36.

FRAMING OF INDIA’S CONSTITUTION

The subject that engaged their attention was the possibility of the final
constitutional structure not being ready before June 1948, the date fixed
for the final transfer of power. In such an eventuality, it would
be necessary to have a provisional Constitution and a provisional
Government.

Three points, according to the Constitutional Adviser’s note, were
inevitable in the circumstances visualized in the last paragraph. There
would have to be, first, a provisional Constitution for undivided India ; in
other words, a single federation for what was then the whole of British
India. Secondly, in the absence of any explicit declaration by the
unwilling parts whether their independence would be within or outside the
British Commonwealth, the provisional Constitution would necessarily have
to be that of a federation enjoying independence within that Commonwealth
or full Dominion Status. A third point centred round the British
Government’s insistence on a fair measure of agreement between the
diSerent parties in India even for the transfer of power to a provisional
Government. Cripps had indicated in a speech in the House of Commons
on the official statement of December 6, 1946 that if only a large group of
Provinces — but not all— should agree upon the form of the Constitution,
it might become necessary to hand over power separately to areas not fully
represented in the Constituent Assembly.

All this meant that there must be at least an agreed provisional
Constitution ready before June 1948, as even more urgently necessary than
the framing of the ultimate constitutional structure. The Constitutional
Adviser drew up a questionnaire bearing on the salient features of the
Constitution to facilitate the framing of the final Constitution. A draft
prepared on the basis of replies received from the members of the
Constituent Assembly and of the various Provincial Assemblies, he felt, was
likely to save much time and provide a basis for the preparation of the new
Constitution.

It was also the intention of the Constitutional Adviser to get ready as
early as possible the outlines of a provisional Constitution, so that at the
end of the next session of the Constituent Assembly it could divide into
Sections for framing Provincial Constitutions for each of the Provinces
included in each Section. That, the President hoped, might be possible
before the end of June 1947. On the assumption, necessarily provisional,
that the Sections would be ready with their respective drafts not later than
the middle of July (allowing some more time for Sections B and C because
of their comparatively more difficult tasks), it was hoped to complete the
Constitution, including the Union portj;pn, before the end of September
1947. By then, the Constitutional Adviser expected the draft of the
provisional Constitution also to be ready".

N. Rau, India's Constitution in the Making, 2nd edn., pp. 37-41.

HISTORICAL BACKGROUND

Meanwhile, (functioning of course outside the Constituent Assembly) the
Congress Working Committee made a last attempt (on March 8, 1947) to
bring the Muslim League’s representatives into the Constituent Assembly,
It declared the work of the Assembly to be essentialy voluntary and gave
the assurance that there could be no compulsion in the making of the
Constitution for India. Without such compulsion or coercion, it would be
easy, observed the Working Committee, to determine India’s future so as
to safeguard the rights of all communities and give opportunities to all.
The Constitution framed by the Assembly would apply only to those areas
which accepted it. Any Province or part of a Province which accepted the
Constitution and desired to join the Union could not be prevented from
doing so. There would be no compulsion either way. An earnest appeal
to all parties and groups to discard violent and coercive methods and to
cooperate peacefully and democratically in the making of the new
Constitution concluded :

The end of an era is at hand and a new age will soon begin. Let this dawn
of the new age be ushered in bravely, leaving hates and discords in the
dead past.

In such a mood the Congress Working Committee invited the Muslim
League’s representatives for a joint meeting to consider the situationh
This appeal proved futile. Nevertheless, the Constitutional Adviser
proceeded with his programme of work as endorsed by the President. The
questionnaire® was issued on March 17 , 1947 , with a covering letter
which explained that though the questions related to the Constitution at
the Centre, most of them would apply, mutatis mutandis, also to the
provincial sphere. The replies were invited so as to reach the
Constitutional Adviser not later than April 10 , 1947 . No questions were
included on Group Constitutions, since it would have been premature to
do so until the Sections had decided to set up such Constitutions.

The Constituent Assembly adopted a resolution on April 30, 1947, for
setting up a committee to report on the main principles of the Union
Constitution. Copies of the Constitutional Adviser’s questionnaire were
sent to the members of this committee; but only one member out of twelve
sent his replies, while a second sent a memorandum embodying general
directives as well as a draft Constitution. B. N. Rau prepared an
independent memorandum on the Union Constitution^ including in it
a detailed draft of as many of the proposed provisions of the Constitution
as could be drafted at that stage and submitted it to the committee on
May 30, 1947.

At the same sitting of the Constituent Assembly (on April 30, 1947) it

^Select Documents I, 84(iii), pp. 519-20,
mid., II, 13, pp. 437
mid.,11, 15(iiX pp. )

FRAMING OF INDIA’S CONSTITUTION

was decided to establish a second committee to report on the main principles
of a model Provincial Constitution. Of the twenty-one members of this
committee to whom the questionnaire was sent only seven responded with
replies to the Constitutional Adviser who prepared an independent
memorandum for the committee’s consideration on a model Provincial
Constitution*.

Another step worth recording as relevant to the framing of the
Constitution was Rajendra Prasad’s reference to the Constitutional Adviser
of two questions which had given rise to apprehensions regarding the rights
of minorities, especially among the Muslims and the Sikhs. These questions
were :

(1) Could the Union Assembly direct that the Sections should not
meet until the Advisory Committee on minority rights had
submitted its report ?

(2) What could be done to meet the Sikh demand for safeguards ?

The Constitutional Adviser’s reply was, as regards (1), that there was

nothing to prevent such a direction being given ; but it was possible that
the Sections (or some of them) might hold a preliminary meeting on the
footing that they would not be settling the provincial Constitutions at that
stage. On the question of safeguards for the Sikhs, he suggested inviting
the Sikh members of the Assembly to formulate their claims in precise
terms*.

Developments in India outside the Constituent Assembly in the spring
and early summer of 1947 had a profound reaction, both on the British
Government and the Indian political parties. The outbreak of large-scale
communal riots in several parts of Northern India and the sharply
adverse comments of the Muslim League on the Objectives Resolution
adopted by the Constituent Assembly convinced the new Viceroy,
Mountbatten, who had assumed charge in March 1947. that the transfer of
power would have to be hastened in order to prevent a further deterioration
of the situation. The circumstances in which this conclusion was reached
deserve mention.

It has already been noted that, in its resolution of March 8, 1947, the
Congress Working Committee made an effort to persuade the Muslim
League representatives to join the labours of the Constituent Assembly. The
committee had, however, to take note of two factors. In the first place,
the British Government’s statement of February 20, 1947, had declared
that

if it should appear that such a Constitution (a Constitution worked out in
accordance with the proposals made in May 1946) will not have been worked
out by a fully representative Assembly before the time mentioned in

''■Select Documents II, 2I(ii), pp. 632-41.

'B. N. Rau, India's Constitution in the Making, 2nd edn. 1963, pp. Ixx-lxxi.

HISTORICAL BACKGROUND

paragraph 7— i.e. before June 1948 — ^His Majesty’s Government will have
to consider to whom the powers of the Central Government in British
India should be handed over on the due date, whether as a whole to some
form of Central Government for British India, or in some areas to the
existing Provincial Governments, or in such other way as may seem most
reasonable and in the best interest of the Indian people.

Gandhi, an opponent of partition till the last, giving his reaction to Attlee’s
statement, wrote to Nehru :

Evidently I had anticipated practically the whole of it. My interpretation
of Mr. Attlee’s speech is this :

1. Independence will be recognized of those parts which desire it and will
do without British protection;

2. The British will remain where they are wanted;

3. This may lead to Pakistan for those provinces or portions which may
want it. No one will be forced one way or the other. The Congress pro-
vinces, if they are wise, will get what they want;

4. Much w'iil depend upon what the Constituent Assembly will do and what
you as an interim Government are able to do;

5. If the British Government are and are able to remain sincere, the
declaration is good. Otherwise it Is dangerous\

In view of the rapidly deteriorating communal situation in the Punjab, the
Congress Working Committee had also adopted a resolution on March 8
suggesting that the Province of the Punjab should be divided into two parts
so that the predominantly Muslim portion might be separated from the
predominantly non-Muslim portion ; and the Congress President explained
in a Press interview that the same remedy would have to be adopted in
Bengal if similar circumstances arose in that province^

Clearly then, even if as a last resort. Congress thinking was moving in
the direction of a division. This was further emphasized by Rajendra
Prasad in his speech in the Assembly on April 28, 1947, in which he
referred to the possibility that the Union of India might not comprise all
the Provinces. In that case, he said,

we can and should insist that one principle will apply to all parts of the
country and no Constitution will be forced upon any unwilling part of it.
This may mean not only a division of India but a division of some
Provinces®.

The Muslim League for its part maintained a studied silence regarding the
British Government’s decision to transfer power by June 1948. But Jinoah
was forthright in his criticism of the proposal to divide Bengal and the
Punjab. Tim ""moth-eaten” Pakistan which years earlier he had

7D. G. Tendiiikar, Abdul Ghaffar Khan, p. 401.

W. P. Menon, Transfer of Power in India, p. 347.

■ „ A, Deb., Vdl. III,. ,p. . 345., ■

FRAMING OF INDIA’S CONSTITUTION

rejected. The proposal for the partition of Bengal .and the Punjab he
considered sinister move actuated by spite and bitterness”.

Meanwhile the- communal situation was assuming dangerous proportions.

When Mountbatten came as Viceroy, the instructions given to him were

(1) to try to obtain a unitary Government through a Constituent
Assembly in accordance with the Cabinet Mission’s plan of May 16,
1946;

(2) if by October 1947 it turned out that there was no prospect of
reaching a settlement on this basis, to report on the steps which in
his view would be necessary for the handing over of power by June
1948h

Mountbatten soon came to the conclusion that it would not be possible to
get the Congress and the Muslim League to work together in the Constituent
Assembly and hammer out a Constitution which would have the general
support of both. Alternatives had therefore to be devised. In these
circumstances, the British Cabinet, backing Mountbatten, again acted with
courage. After consultations with the leaders of the Opposition in Britain
and the leaders of the political parties in India, a fresh statement of policy
was made by the British Government on June 3, 1947, reviewing the

situation in the following terms :

The majority of the representatives of the Provinces of Madras, Bombay,
the United Provinces, Bihar, Central Provinces and Berar, Assam, Orissa
and the North-West Frontier Province, and the representatives of Delhi,
Ajmer- Merwara and Coorg have already made progress in the task of
evolving a new Constitution. On the other hand, the Muslim League party,
including in it a majority of the representatives of Bengal, the Punjab and
Sind, as also the representative of British Baluchistan, has decided not to
participate in the Constituent Assembly.

It has always been the desire of His Majesty’s Government that power
should be transferred in accordance with the wishes of the Indian people
themselves. This task would have been greatly facilitated if there had
been agreement among the Indian political parties. In the absence of such
agreement, the task of devising a method by which the wishes of the
Indian people can be ascertained has devolved upon His Majesty’s
Government. After Mi consultation with political leaders in India, His
Majesty’s Government have decided to adopt for this purpose the plan
set out below. His Majesty’s Government wish to make it clear that they
have no mtention of attempting to frame any ultimate Constitution
for India ; this is a matter for the Indians themselves. Nor is there anything
in this plan to preclude negotiations! between communities for a united
India.

The plan now put forward recognized the inevitability of partition,
P. Mmon, The Transfer of Power in India, p. 351.

HISTORICAL BACKGROUND

despite the strongly held opinion of Gandhi and the Congress in favour
of a united India : it also recognized the inevitability of the partition of
Bengal and the Punjab, in spite of all the protestations of Jinnah and the
Muslim League that such a division would be unacceptable to them. It
accordingly proposed the following solution ;

(a) the work of the Constituent Assembly would not be interrupted
but steps would be taken to ascertain the wishes of the Muslim
majority areas on the issue whether their Constitution was to be framed

(1) by the existing Constituent Assembly; or

(2) in a new and separate Constituent Assembly consisting of the
representatives of those areas which decided not to participate in
the existing Assembly ;

(b) for this purpose the Provincial Legislative Assemblies of Bengal
and the Punjab (excluding the European members) would be asked
to meet in two parts, one representing the Muslim majority districts
and the other the rest of the Province. For the purpose of
determining the population of district the 1941 census figures would
be taken as authoritative ;

(c) the members of the two parts of each Legislative Assembly sitting
separately would be empowered to vote whether or not the Province
should be partitioned. If a simple majority of either part decided
in favour of partition division would take place :

(d) before the question of partition was decided, if any members so
demanded, a meeting of all the members (excluding the European
members) would be held at which a decision would be taken on the
issue as to which Constituent Assembly the Province as a whole
would join if it was decided by the two parts to remain united ;

(e) in the event of partition being decided upon each part of the
Legislative Assembly would, on behalf of the areas they represented,
decide whether it would join the existing Constituent Assembly or
the new Assembly for Muslim majority areas; also if there was to
be partition the boundaries of the new Provinces would be finally
demarcated by a Boundary Commission ;

(f) the Legislative Assembly of Sind (excluding the European members)
would also take its own decision as to the Constituent Assembly in
which that Province would participate ;

(g) if one of the two parts of the Punjab decided not to join the
existing Constituent Assembly (the reference being obviously to the
MusBm majority areas constituting West Punjab) a referendum
would be held in the North-’VV^st Frontier Province (in which the
electorate to the Legislative Assembly of that Province would
participate) on the question whether the North-West Frontier
Province would remain isolated from India or would participate in
the existing Constituent Assembly or join the new Assembly ;

FRAMING OF INDIA’S CONSTITUTION

: -. (h) British Baluchistan would also be given’ the same o-ption. (But' the
precise miacliinery for exercising the option was not decided at this
. stags. It was later decided that the option, would be left to the
■decision of a, joint meeting of the Shahi Jirga — the principal tribal
council of the Province — and the non-official members of the Quetta
municipality);

,(i),ia the event' of it being decided that Bengal should be partitioned,

, a .referendum would be held in- the Sylhet District of Assam (Assam
v/as a predominantly non-Muslim Province, but this district was
predominantly Muslim) to' decide whether it ■ would continue to be
part ; of Assam or whether it should be amalgamated with the new
Province of East Bengal

The British Government was ready to transfer power at the earliest
possible moment ; it was even willing to anticipate a date earlier than June
1948 for the handing over of power by the setting up of an independent
Indian Government or Governments. Legislation was proposed to be
introduced in the British Parliament for the transfer of power on a
Dominion Status basis to one or two successor authorities, according to the
decision taken as a result of this announcement. This, it was added, was
without prejudice to the right of the Constituent Assembly to decide
whether India would remain within the British Commonwealth or go ouf .

Mountbatten, explaining the revised British plan, announced that with
the acceptance of the Muslim League’s demand for the partition of India,
the argument that certain Provinces should also be partitioned was
unassailable. The transfer of power was to take place at the earliest possible
moment ; but Britain could not wait until the completion of the deliberations
of the Constituent Assembly. The only solution for the dilemma,
according to the Viceroy, was therefore the transfer of power immediately
to one or two Governments of British India on the basis of Dominion
Status. The way would thus be open to an an-angement by which power
could be transferred many months earlier and at the same time it could
be left to the people of India to decide their future for themselves. Finally
he mentioned August 15, 1947, as the date for the transfer of powerl
Nehru accepted the Mountbatten plan, describing it as ‘‘another histone
occasion when a vital change affecting the future of India was being
proposed”. In the course of a broadcast message on June 3, 1947, he said :
This announcement lays down a procedure for self-determination in certain
areas of India. It envisages, on the one hand, the possibility of these
■ areas seceding from India; on the other, it promises a big advance towards
complete independence. Such a bi# change must have the full concurrence
of the people before effect can be given to it, for it must always I-

^Select Documents I, 85(i), pp. 521-6.

®V. P. Menon, The Transfer of Power In India, p. 382.

HISTORICAL BACKGROUND

remembered ■ that the future of, India, can only be. decided by the people of
India and not by any outside authority, however friendly. Tliese proposals
will be placed soon before representative assemblies of the people for
considerationh

The partitian of India into two States having become inevitable, Nehru
concluded his broadcast on a note of sadness. He had no doubt in his
mind that the course adopted was the right one. But he added :

For generations we have dreamt and struggled for a free independent and
united India. The proposal to allow certain parts to secede, if they so will
is painful for any of us to contemplate. Nevertheless, I am convinced
that our present decision is the right one even from the larger viewpoint.
The united India that we have laboured for was not one of compulsion
and coercion but a free and willing association of a free people. It may
be that in this way we shall reach that united India sooner than otherwise
and that she will have a stronger and more secure foundation^

Neither Jinnah nor the Muslim League categorically accepted the
plan — they had for long opposed the division of Bengal and the Punjab.
But Jinnah came as near acceptance as he could in his observation that
so far as I have been able to gather, on the whole the reaction in the
Muslim League circles has been hopeful.

And, meeting on June 10, the Council of the League passed a resolution
declaring that although it could not agree to the partitian of Bengal and
the Punjab, or give its consent to such partition, it had to consider the
British plan for the transfer of power as a whole ; and full authority was
given to Jinnah to accept the principles of the plan as a compromise and
to take all the necessary further steps*.

It remains to add that in pursuance of this plan a separate Dominion of
Pakistan was constituted with effect from August 15, 1947, comprising the
areas of East Bengal and West Punjab, the Provinces of vSind, the North-
West Frontier Province and British Baluchistan, and Sylhet district in
Assam. These areas thus were excluded from the jurisdiction of the
Constituent Assembly of India. Legal sanction for partition accompanied
by the conferment of Dominion Status was contained in the Indian
Independence Act, 1947. In respect of the functions of the constitution-
making body, the Act said :

.In the, case of each uf the new Dominions, the powers of the Legislature
of the Dominion shall, for the purpose of making provision as to the
Constitution of the Dominion, be exercisable in the first instance by the
Constituent Assembly of that Dominion, and references in this Act
to the Legislature of the Dominioi? shall be construed accordingly^

/ ' ^Select . Bmuments I, 85(ii), pp. 527-8.

nbid, '■■■

;^V. F. Menon, The Transfer of Power m India, p, 3ZS.

'■ ^Select' Docummis J, 86(iiX p. 543;

FRAMING OF INDIA’S CONSTITUTION

With this anEOuncement of indepeEdence, all the restrictions and
conditioEs contained in the Cabinet Mission’s plan of May 16, 1946 ceased
to operate. The Constituent Assembly became a ' truly sovereign body,
free from all external control. At last, after twenty-eight months of sustained
and exacting labour, uninterrupted by even the great tragedy of Gandhi’s
assassination (on January 30, 1948), the final session of the Constituent
Assembly was able to declare on behalf of the people of India that ‘'we
do hereby adopt, enact and give to ourselves this Constitution”. It was the
achievement ' in ' full measure of an aspiration which had undergone radical
alterations in the interval between the two wars. In the decade following
the end of the first world war, India’s leaders claimed no more than the
right to frame a Constitution subject to its ultimate ratification by the
British Parliament. The demand was stepped up in the next decade to
the creation of a sovereign Constituent Assembly entrusted with the
unrestricted responsibility of framing a Constitution for an independent
India. The forces operating during the second world war compelled the
British Government to move steadily in the direction of granting the
substance of such a claim. But not until June 3, 1947, was it conceded in
full, primarily as a result of the British decision to withdraw its authority
over India on August 15, well before the completion of the task of the
Constituent Assembly. No outside authority, after that dale, could sit in
judgment over the draft of a Constitution framed by a sovereign body.

MEMBERSHIP OF THE CONSTITUENT ASSEMBLY

A NOTABLE FEATURE of India’s Constituent Assembly was the number of
transformations it was subjected to in the course of its career between July-
August 1946, when it was first elected, and November 1949, which marked
the end of its complicated task. In its first stage, the election of representatives
was from the territories then described as British India, excluding the Indian
States.

In the setting up of the Constituent Assembly, the suggestions of the
Cabinet Mission, as outlined in its statement of May 16, 1946, were faithfully
adopted. Having rejected the method of election by adult franchise, which,
though obviously the most satisfactory basis for the constitution of the
Assembly, would have resulted in a wholly unacceptable delay in the
formulation of the new Constitution, the Cabinet Mission came to the
conclusion that the only practicable course was to utilize the recently elected
Provincial Legislative Assemblies as the electing bodies. The fairest and
most practical plan, it declared, would be —

(a) to allot to each Province a total number of seats proportional to
its population, roughly in the ratio of one to a million, as the nearest
substitute for representation by adult suffrage;

(b) to divide this provincial allocation of seats between the main
communities in each Province in proportion to their population ;

(c) to provide that the representatives allotted to each community in
a Province would be elected by the members of that community in
its Legislative Assembly.

The Cabinet Mission added :

We think that for these purposes it is sufficient to recognize only three main
communities in India : General, Muslim and Sikh, the “General”
community including all persons who are not Muslims or Sikhs. As the
smaller minorities would, upon the population basis, have little or no
representation, since they would lose the weightage which assures them seats
in the Provincial Legislatures, we have made the arrangements “Set out in
paragraph 20 below to give them a full representation upon all matters of
special interest to the minorities^

In paragraph 20 the Cabinet Missjpn had proposed that the Advisory
Committee on Fundamental Rights, Minorities and Tribal and Excluded
Areas should contain due representation of the interests affected. Elaborating

^Select Documents I, 48(i), p. 214.

FRAMING OF INDIANS CONSTITUTION

this point, Cripps said :

We were met by the difficulty of how we could deal fairly with the smaller
minorities, the tribal and the excluded areas. In any constitution-making
body it would be quite impossible to give them a weightage which would
secure for them any effective influence without gravely upsetting the
balance' "between ’ the ■ major parties. To give them a tiny representation
would be useless to them. So we decided that minorities would be dealt
^-with really in a double way. -The major minorities such as the Hindus in
the Muslim Provinces, and the Muslims in the Hindu Provinces, the Sikhs in
the Punjab and the depressed classes who had considerable representation in
a. number of Provinces would be dealt with by proportional representation
in the main construction of the constitution-making bodies. But in order
to give these minorities and particularly the smaller minorities like the
Indian Christians and the Anglo-Indians, and also the tribal representatives,
a better opportunity of influencing minority provisions, we have made
provision for the setting up by the constitution-making body of an
influential advisory commission which will take the initiative in the
preparation of the list of fundamental rights, the minority protection clauses
and the proposals for the administration of tribal and excluded areas. This
commission will make its recommendations to the constitution-making
body and will also suggest at which stage or stages in the Constitution these
provisions should be inserted: that is, whether in the Union, Group or
Provincial Constitutions or in any two or more of them\

On this basis the allotment of seats among the various Provinces and
communides in British India was as follows :

Table of Representation
Section A

Province

General

Muslim

■ Total

Madras . •

•

Bombay « « . . .

•

United Pro%dnces

Bihar • , « ■ .

• •

Central Provinces . .

Orissa .....

■ 0

167 , ,

20' , .

187

^Select Documents I, 48(iii), pp. 223-4.

MEMBERSHIP OF THE CONSTITUENT ASSEMBLY

Section

Province

General

Muslim

Sikh

Total

Punjab . • „ »

-28

North-West Frontier Province '

•

3 .

0 ^

Sind

■0'

22 ■■

4 ■

Section

Province

Genera!

Muslim

Total

Bengal .....

Assam . , ....

•

Total for thi Governors’ Provinces of British India : 292.

In order to represent the Chief Commissioners’ Provinces there were added
to Section A the member representing Delhi in the Central Legislative
Assembly, the member representing Ajmer-Merwara in the Central
Legislative Assembly, and a representative to be elected by the Coorg
Legislative Council. To Section B was added a representative of British
Baluchistan.

So far as the Indian States were concerned, the Cabinet Mission said ;

It is the intention that the States would be given in the final Constituent
Assembly appropriate representation which would not, on the basis of the
calculations adopted for British India, exceed 93, but the method of selection
will have to be determined by consultation. The States would in the
preliminary stage be represented by a Negotiating Committee'.

Thus, the total membership of the Assembly was 389, of whom 93 were
representatives of the Indian States and 296 were from British India (292
from the Governors’ Provinces and 4 from the Chief Commissioners’
provinces).

On the basis of the proposals of the Cabinet Mission, elections were held
in July and August, 1946, to the 292 seats allotted to the Governors’ Provinces,
and to the two seats allotted to <!!oorg and British Baluchi^an. The
members representing Delhi and Ajmer-Merwara in the Central Legislative

^Selecl Documents I, 48(i), pp. 215-6,

FRAMING OB INDIA’S CONSTITUTION

Assembly automatically became the representatives of these Provinces in the
Constituent Assembly.

It has already been mentioned that these elections were held in three
communal divisions — ^Muslims (in all the Governors’ Provinces except Orissa).
Sikhs (in the Punjab) and General (in all the Governors’ Provinces except the
North-West Frontier Province). Under the proposals outlined by the Cabinet
Mission, the total number of seats allotted from the Governors’ Provinces to
Muslims was 78, to Sikhs 4, and to candidates in the “General” category
210. Of the 210 general seats the Congress was able to capture 199. The
Congress won all the general seats in Madras (45), tlie Central Provinces and
Berar (16), Bombay (19), and Assam (7) and gained twenty-five out of the
twenty-seven seats in Bengal, twenty-eight out of the thirty-one seats in
Bihar, all but three of the forty-seven seats in the United Provinces, eight
out of the nine seats in Orissa, six out of the eight seats in the Punjab and
the general seat in Sind.

In addition, the Congress was also able to secure the three seats allotted
to Coorg, Ajmer-Merwara and Delhi. It won the Coorg seat in election;
and the members of the Central Legislative Assembly from Ajmer-Merwara
and Delhi, who became members of the Constituent Assembly, were both
from the Congress.

The Congress also won three of the four Sikh seats from the Punjab and
three Muslim seats. Thus the total number of Congress seats in the
Assembly was 208.

The Muslim League had similarly decisive success with the Muslim seats,
capturing seventy-three out of a total of seventy-eight; the Congress could
get only three Muslim seats from the Governors’ Provinces — one in the
United Provinces and two in the North-West Frontier Province. The
representative from Delhi, a Congressman, was also a Muslim.

Two facts relating to the Congress attitude to the elections are worthy
of note. In the first place, the Congress was anxious that the Assembly
should be as truly representative as possible of all elements in India’s national
life; and recognizing its own inherent strength, the Congress also appreciated
its responsibility to bring this about; accordingly the Congress nominations
were not confined to its own party members. Of the two hundred and five
members elected to the Assembly from the Governors’ Provinces on the
Congress vote, as many as thirty were from outside the party. From the
minorities, the Scheduled Castes accounted for twenty-nine; the Indian
Christians had six, Anglo-Indians three, Parsis three and Tribals four’. Thus
liberal representation was given to all minorities’.

Again, the Congress did not hesitate to accept Gandhi’s advice and go
outside the party in order to secure the assistance of the best available talent
in the country for framing India’s '‘•pew Constitution, irrespective of party

'Select Documents I, 61, pp. 287-310.

MEMBERSHIP OF THE CONSTITUENT ASSEMBLY , 97

affiliations. Thus the Congress nominees included N. Go-palaswarai Ayyangat,
a former civil servant who had built up a reputation as a conspicuously
successfur administrator; Hriday Nath Kuiizru, President of the Servants
of India Society; Alladi Krishnaswami Ayyar, an eaninent advocate;
S. Radhakrishnan, philosopher and educationist, who later v/as to fill the office
of . the President of India with great distinction; and H. C. Mookherjee, a
respected educationist from Bengal. These were not strictly speaking party
men; but their participation undoubtedly added distinction to the deliberations
of the Assembly.

This anxiety of the Congress to secure the largest measure of agreement
for the Constitution was reflected also in the composition of the Drafting
Committee. Of the seven members of the Drafting Committee, only K. M.
Munshi and later T. T. Krishnamachari were members of the party. One
member, Muhammad Saadulla, was a member of the Muslim League; and
the others B. R. Ambedkar, Alladi Krishnaswami Ayyar, N. Madhava Rau,
and D. P. Khaitan were independent members. B. R. Ambedkar, who was
elected Chairman of the committee and who piloted the Constitution through
the Assembly with remarkable skill and ability, had for many years been
a vigorous critic of the Congress and its policies^ He remarked on his
election :

I had not the remotest idea that I would be called upon to undertake more
responsible functions. I was therefore greatly surprised when the Assembly
elected me to the Drafting Committee. I was more than surprised when the
Drafting Committee elected me to be its Chairmanh
The party-wise break-up of the Assembly’s British Indian membership
was as follows :

Congress

Muslim League .

Unionist
Unionist Muslim
Unionist Scheduled Castes
Krishak Proja

Scheduled Castes Federation
Sikh (Non-Congress) .
Communist
Independents

208

296

'Among the members of the Consj;ituent Assembly were' the Presidents
of The Indian National Congress, the Depressed Classes League, the Muslim
League, the All-India Scheduled Castes Federation, the All-India, Women’s

A. Deb., VoL XI pp 973-A

FRAMING OF INDIA’S CONSTITUTION

Conference, the All-India Landholders’ Association, the Hindu Mahasabha,
the Servants of India Society, and the Anglo-Indian Association.

Analysed from' another standpoint, the membership included ten members
of the Central Government; five ex-Presidents of the Congress; seven members
of the Congress Working Committee; seven ex-members of the Congress
Working Committee; eight members of the Muslim League Working
Committee; eleven Presidents , of Provincial Congress Committees; two
Presidents of the Provincial Muslim League;, four ex-Members of the Viceroy’s
Executive Council; eight Premiers of Provinces; ten Ministers of Provinces;
seventeen ex-Ministers of Provinces, or ex-Members of Governors’ Executive
Councils; thirty-four members of the Central Legislature ; three ex-members
of the Central Legislature; 155 members of Provincial Legislatures; four
ex-members of the Provincial Legislatures; the Speaker of a Provincial
Legislature; and an ex-Speaker of a Provincial Legislature. There were also
eminent lawyers, members of the medical profession, educationists including
some Vice-Chancellors, industrial and commercial magnates, working class
(industrial and agricultural) representatives, journalists and authors.

Out of the 296 iiienibers, 207 members took part in the inaugural session
on December 9, 1946. Seventy-six out of a total of eighty Muslim members
abstained; and only the four Congress Muslim members attended.

With regard to the 93 seats allotted to the Indian States under the Cabinet
Mission’s plan, paragraph 19(ii) of the Mission’s statement of May 16, 1946,
had stated that the method of selection of these representatives would have
to be determined by consultation between the States and the British India
section of the Constituent Assembly. Mainly for this purpose a Negotiating
Committee was set up by the Chamber of Princes and a corresponding States’
Committee was appointed by the Constituent Assembly. These two
committees, after a series of meetings, finally approved of the following
scheme of distribution.

As in British India, the bigger States, which had a right to be represented
individually on the strength of their population, were to be allotted seats on
the basis of one seat for a million of the population (fractions of three-fourths
or more counting as one and lesser fractions being ignored). Smaller States
v/ere classified into (1) Frontier groups and (2) Interior groups. In the case
of these groups, fractions of more than half a million of population were
to be counted as one, lesser fractions being ignored. It was also agreed
that States, so desiring, could pool or share their proportion of the allotted
representation, whether individually or grouped, with that of any other
State or group of States by mutual agreement, provided that the total
representation of the States and/or of J;he groups affected was not , disturbed,
and also that geographical proximity, economic considerations and ethnic,
cultural and linguistic affinities were also kept in view.

There were 20 single. States with a. total population of 61.86 million. The
total number of seats allotted to them was 60, in the following numbers :

MEMBERSHIP OF THE CONSTITUENT ASSEMBLY 99

Hyderabad (16), Mysore (7), Travancore (6), Kashmir and Gwalior (4 each),
Baroda and Jaipur (3 each), Udaipur, Jodhpur, Rewa and Patiala (2 each)
and Cochin, Bikaner, Alwar, Kotah, Indore, Bhopal, Kolhapur, Bahawalpur
and Mayurbhanj (one each).

Four seats were allotted to the frontier groups of States with an aggregate
population of 3.32 million. Twenty-nine seats went to States classified as
interior groups with a total population of 27.82 million.

With regard to the method of selecting the States’ representatives, the two
committees agreed that not less than 50 per cent of the total representatives
of States should be elected by the elected members of the Legislatures of the
States concerned; or, where such Legislatures did not exist, by other
electoral colleges. The States, it was expected, would endeavour to increase
the quota of elected representatives to as much above 50 per cent of the total
number as possible.

On the basis of the distribution mentioned above, Baroda, Cochin, Udaipur,
Jaipur, Jodhpur. Bikaner. Rewa and Patiala were the first to select their
representatives: and they took their seats in the Constituent Assembly on
April 28, 1947.

The next phase was reached with the partition of India finally decided
upon in accordance with the statement of the British Government on June
3, 1947. As a result the following territorial distribution took place. The
new Dominion of Pakistan was to include the Provinces of Sind, Baluchistan
and the North-West Frontier Province; the Muslim majority districts of the
Punjab and Bengal; and the district of Sylhet in Assam. The precise territorial
delimitation was determined by the Radcliffe Commission’s award. As a
result of the partition. West Bengal was allotted a membership of nineteen
(fifteen general and four Muslim seats) and East Punjab twelve (six general,
four Muslim and two Sikh seats). The representation of Assam was reduced
to eight. The membership of the Constituent Assembly underwent, in

consequence, the following revisions :

Governors’ Provinces 226

Ajmer-Merwara, Delhi and Coorg 3

Indian States 89

318

It was further decided that fresh elections would be held to the Constituent
Assembly in the new Provinces of East Punjab and West Bengal'.

Subsequently on January 27, 1948, the Constituent Assembly itself added
two more members to West Bengal and, in view of the change in the
communal strengths in East Punjab, Jhc representation of that Province was
altered so as to provide for eight general seats and four Sikh seats-. ^ ^

'^Select. -Documents'^ 1, 85(i), p, 525,

■ 4. Dek^ Vol, VI pp. 3-13, .

100

FRAMING OF INDIA’S CONSTITUTION

The distribution of the seats returned from the Governors’ Provinces
and Chief Commissioners’ Provinces as on November 10, 1948, was
as follows ;

General

Sikh

Muslim

Total

Madras

. ,

Bombay

• •

West Bengal

United Provinces

East Punjab

Bibar .

• •

C.P. & Berar

Assam

Orissa.

197

232

Delhi .

•

• •

. .

Ajmer-Merwara .

•

. »

. .

Coorg

•

••

•*

235

The foregoing paragraphs have dealt with changes in the numerical strength
of the Constituent Assembly and in its representative character. There was,
however, a series of changes of a different kind in the representation accorded
to the Indian States which deserve separate mention.

While the Constituent Assembly was in session holding its deliberations
between December 1946 and November 1949, many of the smaller States
were merged in the Provinces; many others were united to form Unions of
States; and some were directly administered by the Centre as Chief
Commissioners’ Provinces. These changes necessarily called for a
readjustment of representation of the States from time to time. The general
plan adopted was as follows : •

(i) Where States were merged in Provinces, the Speaker of the
Legislative Assembly of the Province was authorized to hold elections
and bye-elections wherever necessary, and notify the person or persons
elected or nominated;

MEMBERSHIP OF THE CONSTITUENT ASSEMBLY

101

(ii) where States were united to form Unions of States and in the case
of Hyderabad, Mysore and Jammu and Kashmir, the Rajpramukh or
the Ruler of the State was entrusted with this function ;

(iii) in the case of States constituted into Chief Commissioners’ Provinces
this function was entrusted to the Chief Commissioners.

The allocation of the seats, as on October 15, 1949, was follows :

Hyderabad . . 16

Mysore 7

Kashmir . . . ,4

United State of Kathiawar (Saurashtra) .... 5

United State of Rajasthan 12

United State of Vindhya Pradesh 4

United State of Gwalior-Indore-Malwa (Madhya Bharat) . 7

Patiala and East Punjab States Union ..... 3

United State of Travancore-Cochin 7

Bhopal . » . I

Himachal Pradesh

r ^

Bilaspur . J

Cooch-Behar 1

Kutch 1

Manipur

Tripura . .

Bombay States 8

Central Provinces & Berar States ...... 3

Madras States 1

Orissa States 5

United Provinces States ....... 2

Hyderabad did not send its representatives to the Constituent Assembly at
any stage of its deliberations, A list of members of the Constituent Assembly
as in November 1949, is given below :

102

FRAMING OF INDIA’S CONSTITUTION

O. V. Alagesaa

Mrs. Ammu Swammadhan

M. Ananthasayanam Ayyaagar
Moturi Satyaoarayana

Mrs. Dakshayani Velayiidhan
Mrs. G. Durgabai
Kala Venkatarao

N. Gopalaswami Ayyaiigar
D. Govinda Das

Rev. Jerome D’Souza.

P. Kakkan

K. Kamaraj

V. C. Kesava Rao
T. T. Krishnamachari
Aliadi Krishnaswami Ayyar

L. Krishnaswami Bharathi
P. Kunhiraman

M. Thirumula Rao

V. I. Muniswamy Piilay
M. A. Muthiah Chettiyar
V. Nadimutiiu Piilai
S. Nagappa
P. L. Narasimha Raju

B. Pattabhi Sitaramayya

C. Pemmalswami Reddi

Baichandra Maheshwar Gupte
Mrs. Hansa Mehta
Hari Vinayak Pataskar
B. R. Ambedkar
Joseph Alban D’Souza
Kanayalal Nanabhai Desai
Keshavrao M.arutirao Jedhe
Khandubhai Kasanji Desai
Bal 'Gangadhar ' Kher '

M. R. Masanl ' '

K.'M. Munshi

MADRAS

T. Prakasam

S. H. Prater

Raja Swetachalapathi Ramakrishna Renga
Rao of Bobbin

R. K. Shanmukham Chetty

T. A. Ramaiingam Chettiar
Ramnath Goenka

O. P. Ramaswami Reddi yar
N. G. Ranga

N. Sanjiva Reddi
K. Santhanam

B. Shiva Rao
Kaiiur Subba Rao

U. Srinivasa Maliayya

P. Siibbarayan

C. Subramaniam

V. Subramaniam
M. C. Veerabahu

P. M. Velayudapani

A. K. Menoii
T. J. M. Wilson
Mohamed Ismail Sahib
K. T. M. Ahmed Ibrahim
Mahboob Aii Baig Sahib Bahadur

B. Pocker Sahib Bahadur

BOMBAY

Narhar Vishnu Gadgil

S, Nijaiingappa
S. K. Patil

Ramchandra Manohar Nalavade

R. R. Diwakar

Shankarrao Deo

(J. V. Mavaiankar

Vallabhbhai J. Patel

Abdul Kadar Mohammad Shaikh ■

■ A, A. Khan

MEMBERSHIP OF THE CONSTITUENT ASSEMBLY

103

WEST BENGAL

Monomohan Das
Anin Chandra Guha
Lakshmi Kaiita Maitra
Mihit Lai Cfaattopadhyay
Satis Chandra Samanta
Suresh Chandra Majumdar
Upendranath Barman
Prabhodayal Himatsingka
Basanta Kumar Das
Mrs. Renuka Ray
H. C. Mookherjee

Surendra Mohan Ghose
Syama Prasad Mocker jee
Ari Bahadur Gurung
R. E. Platel
K. C. Neogy
Raghib Ahsan
Jasimuddio Ahmad
Naziruddin Ahmad
Abdul Hamid
Abdul Halim Ghuznavi

UNITED PROVINCES

Ajit Prasad Jain

J. B. Kripalani

Algu Rai Shastri

Mahavir Tyagi

Balkrishna Sharma

Khurshed Lai

Bans hi Dhar Misra

Masurya Din

Bhagwan Din

Mohan La! Saksena

Damodar Swarup Seth

Padampat Singhania

Dayal Das Bhagat

Phool Singh

Dharam Prakash

Paragi Lai

A. Dharam Dass

Mrs. Purnima Banerji

R. V. Dhulekar

Purushottamdas Tandon

Feroz Gandhi

Hira Valla bha Tripathi

Gopal Narain

Ram Chandra Gupta

Krishna Chandra Sharma

Shibban Lai Saxena

Govind Ballabh Pant

Satish Chandra

Govind Malaviya

John Matthai

Har Govind Pant

Mrs. Siicheta Kripalani

Harihar Nath Shastri

Sunder Lall

Hriday Nath Kunzru

Venkatesh Narayan Tivary

laspat Roy Kapoor

Mohanla! Gautam

lagannath Baksh Singh

Vishwambhar Dayal Tripathi

Jawaharlal Nehru

Begum Aizaz Rasul

Jogeiidra Singh

Hyder Hussain

Jugal Ki shore

Hasrat Mohaiii

Jwala Prasad Srivastava

Abul Kalam Azad

B. V. Keskar

Muhammad Ismail Khan

Mrs. Kamala Chaudhri

Rah Ahmad Kidwai

Kamaiapati Tiwari

Mohd. Hifzur Rahman

EAST PUNJAB

Bakshi Tek Chand

Achint Ram

Jairamdas Daulatram

Nand Lai

Thakurdas Bhargava

Sardar Baldev Singh

Bikramla! Sondhi

Giani Gurmukh Singh Mu^air

Yashwant Rai

Sardar Hukam Singh

Ranbir Singh

Sardar Bhopin^r Singh Mann

104

FRAMING OF INDIA’S CONSTITUTION

BIHAR

Amiy.o Kumar Ghosh ■

Krishna Ballabh Sahay

Anugrahnarayan Sinha

Raghunandan Prasad

Banarsi Prasad Jhunjlianwala ■

Rajendra Prasad

Magwat Prasad

Rameshwar Prasad Sinha

Boniface Lakra

Ramnarayan Singh

Brajeshwar Prasad

Sachchidananda Sinha

Chandika Ram

Sarangdhar Sinha

K. T, Shah

Satyanarayan Sinha

Devendra Nath Samanta

Binodanand Iha

Dip Narain Sinha

P. K. Sen

Guptanath Singh

Sri Krishna Sinha

Jadubans Sahay

Sri Narayan Mahtha

Jagat Narain Lai

Syamanandan Sahaya

Jagjivan Ram

Hussain Imam

Jaipai Singh

Saiyid Jafar Imam

Kameshwara Singh of Darbhanga

Latifur Rahman

Kamaleshwari Prasad Yadav

Mohammad Tahir

Mahesh Prasad Sinha

Tajamu! Husain

CENTRAL PROVINCES & BERAR

Raghu Vira

Ghanshyam Singh Gupta

Rajkumari Amrit Kaur

Lakshman Shrawan Bhatkar

B. A. Mandloi

Panjabrao Shamrao Deshmukh

Brijiai Nandlal Biyani

Ravi Shankar Shukla

Thakur Chhedilai

R. K. Sidhva

Seth Govind Das

Shankar Tryambak Dharmadhikarl

Hari Singh Gour

Frank Anthony

Hari Vishnu Kamath

Kazi Syed Karimuddin

Hemchandra Jagofoaji Khandekar

ASSAM

Nibaran Chandra Laskar

Kuladhar Chaliha

Dharanidhar Basu-Matari

Rohini Kumar Chaudhury

Gopinath Bardoloi

Muhammad Saadulla

J. J. M. Nlchois-RoV

Abdur Rouf

ORISSA

. B, , Das

Lhkshminarayan Sahu

Biswaiiath IJas

Lokanath Misra

Krishna Chandra Gajapati Narayana

Nandkishore Das

Deo of Parlakimedi .

Rajkrishna Bose

Harekru'shiia Mahatab ■

Santanu Kumar Das

MEMBERSHIP OF THE CONSTITUENT ASSEMBLY

105

DELHI

Deshbhandtiu Gupta

AJMER-MERWARA

Miikut Bihari Lai Bhargava

COORG

C. M. Poonacha

fC, Chengalaraya Reddy
T. Siddalingaiya
H. R. Guruv Reddy
S. V. Krishnamurthy Rao

MYSORE

K, Hanumanthaiya
H. Siddaveerappa
T. ehanniah

JAMMU AND KASHMIR

Sheikh Muhammad Abdullah Mirza Mohmmad Afzal Beg

Motii'am Baigra Maulana Mohammad Sayeed Masoodi

TRAVANCORE-COCeiN

A. Thanu Piilai K. A. Moliamed

R. Sankar P. T. Chacko

P. S. Nataraja Piilai P. Govinda Menon

Mrs. Annie Mascarene

MADHYA BHARAT

V. S, Sarwate
Brijraj Narain
Gopikrishna Vijayavargiya
Ram Sahai

Kusum Kant Jain
Radhavallabh Vijayavargiya
Sitaram S. Jajoo

SAURASHTRA

Balwant Rai Gopalji Mehta Chimanlal Chakubhai Shah

laisukhlai Hath! Samaldas Laxmidas Gandhi

Araritial Vithaidas Thakkar

RAJASTHAN

V. T. Krishnamachari
Hiraial Shastri
Sardar Siiighji of Khetri
Jaswant , Singhji
Raj Bahadur
Manikya La! Varma

Gokui Lai Asava
Ramchaiidra Upadliyaya
Balwant Siiiha Mehta
Dale! Singh
laiaarain Vyas

106

FRAMING OF INDIA’S CONSTITUTION

PATIALA AND BAST PUNJAB STATES UNION

Ranjit Singh Bhagwant Roy

Sochet Singh

BOMBAY STATES

Vinayakrao Balshankar Vaidya
B. N. Munavalli
Gokuibhai Daulatram Bhatt
Jivraj Narayan Mehta

Gopaldas A. Desai
Parania! Thakurlal Miinslii
B. H. Khardekar
Ratnappa Bharamappa Knmbhar

ORISSA STATES

Lai Mohan Pati Sarangadhar Das

N. Madhava Rait Yudhishthir Misra

Raj Kanwar

CENTRAL PROVINCES STATES

R. L. Maiaviya Ramprasad Potai

Kishorimohan Tripathi

B. H. Zaidi

V. Raniaiah

UNirED PROVINCES SI’ATES
Krishna Singh
MADRAS STATES

VINDHYA PRADESH

Avdesh Pratap Singh Ram Sahai Tiwari

Shambu Nath Shukla Mannulalji Dwivedi

COOCH BEHAR

Himmat Singh K. Maheshwari

TRIPURA AND MANIPUR

Girja Shankar Guha

BHOPAL

Lai Singh

KUTfH

Bhawani Arjtm Khimji

HIMACHAL PRADESH

Y. S* Parmar

PROGRESS OF THE CONSTITUTION THROUGH
THE ASSEMBLY

Elections to the Constituent Assembly were completed by the end ot
July 1946 (except for the Sikh seats in the Punjab). The Congress was anxious
for an early meeting of the Constituent Assembly so that the new Constitution
could be framed and adopted with the least possible delay and enable India
to emerge as a fully independent nation. On the other hand, when the
Cabinet Mission announced on June 26, 1946, that the formation of an
interim National Government would be postponed, the Muslim League
began to press for a more or less indefinite postponement of the Constituent
Assembly as well. In his letter to the Viceroy, written on June 28, Jinnah
declared that it would be undesirable to proceed with elections to the
Constituent Assembly : he argued that the long terra plan and the formation
of the interim Government formed one whole, each constituting an integral
part of the scheme. Subsequently, on July 29, the Muslim League withdrew
its acceptance of the Cabinet Mission plan.

The Congress started in a business-like way. In July it set up an Experts
Committee', consisting of Jawaharlal Nehru as the Chairman and Asaf AM,
K. M. Munshi, N. Gopalaswami Ayyangar, K. T. Shah, D. R. Gadgil,
Humayun Kabir and K. Santhanam as members, for the purpose of preparing
material for the Assembly. The committee held two sessions, the first from
July 20 to 22 and the second from August 15 to 17, and evolved the procedure
to be followed by the Assembly. The Assembly would, according to the
committee, first elect a temporary or acting Chairman, preferably by agreement
between the two parties, from amongst its members. A resolution would
then be adopted prescribing the procedure for the election of a permanent
Chairman. The Assembly would also elect one or more Vice-Chairmen.
The next item of business would be to form committees — a Steering Committee
of fifteen, with a quorum of five members, a Staff and Finance Committee,
consisting of the Chairman, the Vice-Chairman, the Secretary -General and
nine other members, and a Procedure Committee. A Secretary-General was
also to be elected. It was contemplated that the Assembly would then
proceed to elect a Fundamental Rights Committee with a membership of
forty-five, all of whom need not necessarily be members of the Assembly.
This committee was to consist of three sections, one dealing with fundamental
rights, the second with the protection of minorities and the third

’^Select Documents 1, 64, pp. 326-43.

107

108

FRAMING OF INDIA’S CONSTITUTION

sub-committee with the special interests of tribal and excluded areas.

The Assembly was then to address itself to the task of defining the
objectives; these would be in the form of an appropriate resolution, a draft
of which was also prepared.

The' Experts Committee proposed that the next task of the Assembly would
be to indicate the scope covered by the subjects to be reserved for the Union
in terms of the Cabinet Mission’s plan of May 16, 1946. After this, the
Assembly would divide itself into Sections for the purpose of framing the
Provincial Constitution.

The Constituent Assembly had its first meeting on December 9, 1946. The
Muslim League was not at the time participating, but there persisted still
a faint hope that, as a result of the discussions which had taken place a
few days earlier in London, it might be persuaded to change its mind.
Meanwhile the Congress leaders had agreed that, pending a decision of the
League Council, no decisions should be taken in the Assembly on
controversial issues. The meeting, which commenced on December 9,
continued till December 23, when the Assembly adjourned for a month.
During this period not much business was done. Rajendra Prasad, a
veteran Congressman described by Radhakrishnan as “the suffering servant
of India, of the Congress, who incarnates the spirit for which the country
stands”, was elected Chairman — an office subsequently designated President'.
The Objectives Resolution was moved by Jawaharlal Nehru on December
13, but after six days’ discussion, its consideration was postponed to the
Assembly’s next meeting, so that, as the President observed :

We may have the advantage of others, who are not present here today,
coming in, and we may have the advantage of their views also on that
resolution^.

To deal with the problem of the States, a Negotiating Committee was
set up on December 21, to discuss with the representatives of the Chamber
of Princes and with other representatives of the Princely States the question
of their participation in the Assembly^ The Committee on the Rules of
Procedure was elected on December ll\ This committee submitted its
report on December 21 and after two days’ discussion in camera the Rules
were adopted by the Assembly on December 23'\ It is relevant to recall
that these Rules provided for the Assembly sitting in Sections, as coiitemplated
in the Cabinet Mission’s plan of May 16, 1946, for the purpose of deciding
whether a Group Constitution should be set up for the Provinces included
in the Section and, if so, with what provincial subjects the Group should

deal. The Rules also contemplated that the Sections should have full freedom

# ;

VoL I, pp. 36-51.

HUd., p. 159. '
pp. 149-58.

Hbid., pp. 51-2.

Hbid., p. 247. ^

" PROGRESS OF THE CONSTITUTION THROUGH THE ASSEMBLY 109

to- frame their own procedure, subject to the. condition that no section could
trespass upon the functions of the Union Assembly or vary any decision
of. the Union Assembly taken on the Report of the Advisory Coinniittee
on Fundamental Rights, Minorities and Tribal and Excluded Areas. The
Rules also provided that opportunity should be given, to the Provinces and
Indian States through their Legislatures to formulate their views: on ' the
main features of the Union Constitution; and that before the Constitution
of any Province was finally settled, or the decision to^ set up a
■ Group Constitution for the Section in which the Province was included
was finally taken, an opportunity would be given to it to formulate
its views- —

(a) upon the resolutions outlining the main features of the Constitution,
or, if the majority of the representatives of the Province so desired,
upon the preliminary draft of such Constitution, and

(b) upon the preliminary decision of the Section concerned, as to
whether a Group Constitution should be set up for the Provinces
included in the Section and, if so, with what provincial subjects the
Group should deaP.

The political developments outside the Assembly, v/hich eventually led
to the decision for the partition of India, have already been outlined.
About the end of January, 1947, it became clear that the Muslim League
had no intention of participating in the Constituent Assembly. The
Constituent Assembly went ahead with its programme of business. The
Objectives Resolution was adopted on January 23\ The Steering Committee,
whose duties were generally to arrange the business of the Assembly, was
elected on January 21, its ex-officia Chairman being the President of the
Assembly', Three days later the Advisory Committee on Fundamental
Rights, Minorities and Tribal and Excluded Areas was elected, and provision
was made in the resolution electing the committee for the participation of
Muslim League members if and when they chose to participate'. The
Assembly also elected

(1) a committee — called the “Business Committee” or the “Order of
Business Committee” — consisting of N. Gopalaswami Ayyangar, K. M’.
Munshi and Biswanath Das, to recommend the order of the further
business of the Assembly in framing the Constitution for India and
to submit its report before the commencement of the next session of
the Assembly; and

(2) a committee on the subjects to be assigned to the Union Centre.

The second committee, which came to be' known as the Union Powers

Committee, was considered ■ necess^y ■ because in the Cabinet " Mission’s

^Select Documents I, 74, p. 436; C, A. Deb., VoL I, p. 229,

"C. Vol. II, pp. 303-4.

^Ihid., p. 273.
nbid,, pp. '308-27,

FRAMING OF INDIA’S CONSTITUTION

Statement of May 16, 1946, Union subjects were generally and compendiously
indicated under four broad categories and an understanding of the scope
of the subjects was essential for the purpose of framing the Union and the
Provincial Constitutions, and of avoiding as far as possible overlapping
and conflicts between the Union Constitution on the one hand and the
Provincial and Group Constitutions on the other'.

The Constituent Assembly next met on April 28, 1947, and was in session
for five days till May 2. By this time a basic understanding had been
reached on the issue of the participation of the Indian States, and several
of them had sent their representatives to the Assembly. The main business
conducted during this period was a discussion of the various recommendations
of the Advisory Committee pertaining to fundamental rights. The Union
Powers Committee presented its first report, but no discussion took place.
N. Gopalaswami Ayyangar, in presenting the report, referred to the various
uncertain features of the situation. The Muslim League was not participating;
neither were several Indian States. Above all, political discussions were
taking place outside the Assembly; and if, as was feared, the result was
a decision to divide India into two or more independent States, it might
be necessary for the Assembly to deviate from rigid conformity to the
Cabinet Mission’s plan. Gopalaswami Ayyangar suggested therefore, and
the Assembly agreed, that discussion on the Union Powers Committee’s
report should be postponed and that in the light of further developments the
committee would, if necessary, submit a further report".

The Order of Business Committee presented its report on April 30. The
committee took note of the fact that in accordance with the statement of
the British Government made on February 20, 1947, power was to be
transferred not later than June, 1948, and suggested that this decision
imported an element of urgency into the work and proceedings of the
Assembly and made it essential that the Constitution should be framed well
before the end of 1947. The Order of Business Committee suggested that
two separate committees be appointed, one to report on the main principles
of the Union Constitution and the other to report on the principles of a
model Provincial Constitution. The suggestion was also made that the
two committees should have an element of common membership and they
should work side by side in considering the inter-related principles of the
Union and the Provincial Constitutions. The work of the committees would
be of an exploratory character and would facilitate the work of the Union
Assembly and the Sections. The Order of Business Committee concluded
its recommendations in the following terms :

The' Constituent Assembly shouldt complete its work , by the end of

October this year (1947). A meeting will be necessary at the end of June

^C. De/x, VoL II, pp. 329-36.

mid., Vol. Ill, pp. 352r62.

PROGRESS OE THE CONSTITUTION THROUGH THE ASSEMBLY

111

or the beginning of July to consider the reports of the various committees
and thereafter the matter of going into Sections. A meeting of the
Assembly to finalize the Constitution should be held in September*.

In pursuance of the recommendations of the Order of Business Committee
a resolution was adopted fay the Assembly on April 30, authorizing the
President to appoint a Union Constitution Committee and a Provincial
Constitution Committee with instructions to report before the next
session®.

Meanwhile, as a preliminary to the consideration of the principles of
the Union Constitution and the Provincial Constitutions, the Constitutional
Adviser had prepared a questionnaire on the salient features of the
Constitution®. This was circulated to all the members of the Provincial
Legislatures and the Central Legislature on March 17, 1947, in order to elicit
their views. Copies of this questionnaire were subsequently also circulated to
members of the two committees ; and it was decided that on the receipt of
the views of the members, the Constitutional Adviser should prepare a self-
contained memorandum embodying the greatest common measure of
agreement of the views of the several members.

The questionnaire was divided into five parts with a number of questions
appearing on the relevant subject-matter in each part. Wherever necessary
brief explanatory notes were inserted under each question. The questionnaire
dealt only with the Constitution of the Centre; but most of the questions
applied naturally also to the provincial sphere. Members of the Legislatures
were given three weeks’ time for their replies. It was considered unnecessary
at that stage to frame any questions regarding Group Constitutions until the
Sections referred to in the Cabinet Mission’s plan had decided to set up
such Constitutions. The questionnaire related to (A) Head of the Union,
(B) Executive, (C) Legislature, (D) Judiciary, and (E) Amendments to the
Constitution.

Under “A ” — ^Head of the Union, the questions related to his designation,
the mode of choice, the duration of his office, eligibility for re-election,
rotation of the office among different communities, the appointment of one
or more Vice-Presidents with his (or their) term of office, the functions of
the President and the Vice-President, the procedure to be adopted for the
removal of the President, and the filling of any temporary vacancy in the
office of the President.

Under “B” — Executive, the questions related to the nature and type of
the Union Executive, the provisions necessary for securing a suitable executive
in the event of its being of the parliamentary type, the composition of the
executive and the maximum (if aijy) of the number of Ministers, the

'C. Vol. Ill, pp. 463-4.

■ ^Ibid., pp.. 461 - 2 . ■

^Select Documents 13, pp. 433-51.

112

FRAMING OF INDIA’S CONSTITUTION

representation of different communities on the executive, the principle of
joint responsibility or coordination, the procedure for the choice of the
members of the executive and for their removal and the relation between
the Head of the Union and the executive.

Under ‘'^—Legislature, the questions raised were whether there should
be one or two chambers for the Union Legislature, the constitution of the
two Houses, if bicameral the composition, franchise, electorates, constituencies
and the methods of election and allocation of seats.

Under “D” — Judiciary, the questions raised related to the desirability of
establishing a separate chain of courts to administer Union laws.

Under ‘'E ' — Amendments to the Constitution, the question was on the
provisions to be made to regulate the procedure for amending the Constitution.

Only a few replies to the questionnaire had been received by the end of
May. The Constitutional Adviser, therefore, prepared, a memorandum
embodying his ideas on the main principles which should guide the
committee in devising the structure of the Union Constitution. He
also prepared a memorandum on the principles of a model Provincial
Constitution. These were ready by the end of May and were circulated
to the members of the respective committees on June 2. Immediately
thereafter appeared the British Government’s proposal of June 3, which
embodied the decision to partition India and to set up two Constituent
Assemblies. The result of the action taken in pursuance of the new policy
was the setting up of a new Dominion of Pakistan, and the transfer of power
to the Dominion Government of India in respect of the governance of the
country minus the parts separated from it and forming part of the Pakistan
Dominion.

There was no longer any question of going into Sections. The immediate
result of this was a decision by the Union Constitution Committee and the
Provincial Constitution Committee that India would be a federation with
a strong Central Government and Legislature, that there would be three
legislative lists on the lines of the Government of India Act, 1935; and that
residuary powers would vest in the Centre and not in the Provinces.

The position of Indian States continued to be much the same as before.
It was contemplated that they would accede on the subjects of defence,
external affairs and communications, and that any further cession of
jurisdiction to the Union would be in the nature of a voluntary act.

The announcement of partition made a deep impact on the Assembly.
It was as a last effort to maintain the unity of India that the Congress had
accepted the Cabinet Mission’s plan for a, weak Centre. The debate on
the Objectives Resolution gave an' opportunity to ' several members to voice
their conviction that a strong Centre was necessary to build up national
strength and prosperity. When therefore this plan was abandoned and
freedom was given to the Assembly to devise a constitutional structure
according to its own choice, there were many who hailed the new development

PROGRESS OF THE CONSTITUTION imOUGH THE ASSEMBLY

113

as a release from the handicaps of curbs and conditions. Munshi gave
expression to this reaction when he said in the Assembly ;

The plan of May 16 had one motive — ^to maintain the unity of the country
at all costs. A strong Central Government was sacrificed by the May 16
plan at the altar of preserving the unity which many of us after close
examination of the plan found to be an attenuated unity which would not

have lasted longer than the making of it As a matter of fact, very

often, if I may express my own sentiment, while examining the plan of
May 16, over and over again, the plan looked to me more like the
parricide’s bag which was invented by ancient Roman Law*.

Now that partition had been accepted, opinion was unanimous that the
preservation of the unity of India was one of the foremost requirements
to be embodied in the Constitution. With this objective, the Union Powers
Committee, the Union Constitution Committee and the Provincial Constitution
Committee went ahead with their labours, often consulting one another,
and formulated their recommendations.

The next session of the Assembly began on July 14 and lasted until the
end of the month. Reporting on the programme of work, the Order of
Business Committee told the Assembly that there would be three reports
for consideration by jthe Assembly — the Reports of the Union Powers
Committee, the Union Constitution Committee and the Provincial Constitution
Committee :

Between them these reports will deal with a large majority of questions
that would have to be decided by the Assembly. We recommend that the
Assembly take decisions on these reports in the July session and direct that
the work be taken up at once of drafting the Constitution Bill. We
recommend also that the Assembly appoint a committee of members to
scrutinize the draft before it is submitted to the Assembly. . .

The matters that will remain outstanding at the end of the July session
will be the reports of the Advisory Committee on Fundamental Rights,
Minorities and the Administration of the Tribal and Excluded Areas. We
suggest that the Advisory Committee complete its work in August and the
recommendations made by them incorporated by the draftsman in his Bill
notwithstanding that no decisions will by then have been taken on them by
the Assembly.

The Order, of Business Committee thought it possible even at that stage
that the Assembly could complete its work by October 1947°.

The business actually transacted by the Assembly in July included
consideration of the Reports of the Union Constitution Committee and the
Provincial Constitution Committee ;•&€ Report of the Union Powers
Committee was not ready till the beginning of August.

*C. v4. UeJ., Vol. IV, p. 544.

Hbid., pp. 560-1; Select Documents 1, 81(iii), pp. 487-8.

9 •

114 FRAMING/OF INDIA’S -CONSTITUTIOK : V .

' The -next meetiog of the Assembly was held on August .14 and temiinated
on the 30th, The first act of the Assembly, on the midniglit/of; August- M,
was to redeem what Jawaharlal Nehru called the Nation’s pledge for a
‘‘tryst with destiny”. This was the moment of India’s attainment of
independence ; and all the members of the Constituent Assembly, after the
last stroke of midnight, took a pledge dedicating themselves anew to the
service of India : ' . . '

. At this solemn moment when the people of India, through suffering and
sacrifice have secured freedom, I. . ' a member' '• of the Constituent
Assembly of India, do dedicate myself in all humility to the service of
India and her people to the end that this ancient land attain her rightful
and honoured place in the world and make her full and willing contribution
to the promotion of world peace and the welfare of mankind'.

^ At this series of meetings, there was a detailed debate on the Report of
' the Union Powers Committee ; 6n the issue of minorities and the rights to
be guaranteed to them ; on the Report of the Advisory Committee on the
Directive Principles of State policy ; and on one or two recommendations
relating to fundamental rights which had been referred back to the
Advisory Committee when these rights were discussed in April and
May.

There was also discussed at these meetings the Report of the Coiiimittee
on the Functions of the Constituent Assembly under the Independence Act,
which was presented to the Assembly on August 29. This committee,
appointed by the President, consisted of G. V. Mavlankar, Hussain Imam,
Purushottamdas Tandon, B. R. Ambedkar, Alladi Krishnaswami Ayyar,
N. Gopalaswami Ayyangar, and B. L. Mitter; its functions were to report
on the position of the Constituent Assembly under the Independence Act.
The major questions which the committee considered related to the
changes in procedure necessitated by the fact that as from August 15, the
Constituent Assembly would also function as the Legislature of the Indian
Dominion^

On August 29, the Assembly adopted a resolution appointing a Drafting
Committee consisting of Alladi Krishnaswami Ayyar, N. Gopalaswami
Ayyangar, B. R. Ambedkar, K. M. Munshi, Muhammad Saadulla, B. L.
Mitter and D. P. Khaitan. Later, N. Madhava Rau was appointed in
B. E. Mitter’s place. Another vacancy caused by the death of D. P. Khaitan
was filled by T. T. Krishnamachari, The committee was
’ to scrutinize the draft of the text of the Constitution of India prepared
by the Constitutional Advisee giving effect to the decisions taken already
in the Assembly and including all -'matters which are ancillary thereto or
which have to be provided in such a Constitution, and to submit to the

'C. A. Deb., Vol. V, P...J.0. '' ' ‘

mid., pp. 337-60. , ^

PROGRESS OF THE CONSTITUTION THROUGH THE ASSEMBLY

115

v Assembly for consideration the text of the Draft Constitution as revised
by the Committee*.

After the Assembly adjourned on August 30, 1947, there was a long
pause in its proceedings ; and except for a meeting on January 27, 1948,
mainly to consider certain changes in the procedure rules, the Assembly did
not meet again till November 4, 1948 to consider the Ehraft Constitution. This
long interval was inevitable because, before the Draft Constitution was
ready for consideration by the Assembly, a considerable amount of
preparatory work had to be completed. The work of drafting the Constitution
was undertaken by the Secretariat of the Constituent Assembly in August
1947, and the first draft prepared by the Secretariat and the Constitutional
Adviser was ready by October”. The Drafting Committee sat from day to
day from October 27, 1947, scrutinizing each clause of this Draft, until its
own revised text was ready in February 1948V

Meanwhile, several committees were considering important matters. An
Expen Committee was appointed by the President in November, 1947, to
advise on the various financial issues that would arise in connection with
the framing of the Constitution. This committee submitted its report on
December 5”. The two sub-committees set up by the Advisory Committee,
one to consider the problems of the backward areas and tribes in Assam, '
and the other to consider similar problems arising in the other Provinces,
did not complete their labours until the autumn of. 1947”. The
recommendations of these sub-committees, which were generally accepted by
the Advisory Committee, were incorporated in the Draft Constitution
prepared by the Constitutional Adviser. r : ; .

During the consideration of the Report of the Union Constitution
Committee by the Assembly, Deshbandhu Gupta moved, on July 30, 1947,
an amendment that a committee should be appointed by the President to
suggest suitable constitutional changes to be brought about in the
administrative systems of the Chief Commissioners’ Provinces so as to
accord with the changed conditions in the country and to give them their
due place in the democratic Constitution of free India”.

The report of the committee appointed by the President in pursuance of
this resolution was ready in October 1947', .

The proposals made by all these committees were taken into consideratipn
by the Drafting Committee in preparing its Draft Constitution.

The Draft Constitution as settled by the Drafting Committee was ready

■%.A::Deb.,Nc\;v,p.^

^ ^Select Documents III, l(i), pp. 13-197. ,

VWd., Ill, 6, pp. 509-677.

‘Ibid., Ill, 4(ii), pp. 255-312.

‘Ibid., Ill, 7, pp. 681-782.

•G. ,4. Voi. IV, p. 998,

‘Select Documents III, 3(v), pp. 248-52.

116

BHAMING OB INDIA’S CONSTITUTION

in Febraary 1948. Wide publicity was given to the proposals contained in
the Draft Constitution. Copies were sent to each member for comments.
Copies were also sent to the Ministries of the Government of India, the
Provincial Governments and Legislatures, the Federal Court and the High
Courts. The idea was that all comments received should be examined by
the Drafting Committee. The Committee met on March 22, 23 and 24 to
consider the comments and suggestions received till then.

Later, another proposal was adopted, calculated to secure the widest
possible degree of consensus for the proposals to be placed eventually
before the Assembly. This was the constitution of a Special Committee,
consisting mostly of the members of the Union Constitution Committee,
the Union Powers Committee and the Provincial Constitution Committee.
The Draft Constitution contained a number of provisions on which the
Constituent Assembly had no opportunity to express its views. There were
a number of matters in which the Drafting Committee had found it
necessary to depart from the decisions adopted earlier by the Constituent
Assembly, e.g., the appointment of Governors. It was considered
advantageous to refer them, as well as other important provisions of the Draft
Constitution together with the amendments bearing on them, to a Special
Committee of the kind proposed. The views of such a large body on the
Draft Constitution and the decisions of the Drafting Committee based on
those views would, it was thought, enable the committee to settle the final
form of the Draft in such a way as to minimi25e the subsequent work of
the Constituent Assembly. The Special Committee met on April 10 and
11,1948.

Suggestions for amendment continued to come in — ^from members of the
Assembly, from Provincial Legislatures, from Ministries of the Government
of India, from Provincial Governments and from other governmental
organizations as well as from non-official bodies and individuals. The
Drafting Committee reassembled on October 18, 19 and 20 to exa m ine
these comments and criticisms, as well as the opinions expressed by the
Special Committee. Eventually it was decided that the Draft Constitution
prepared in February 1948 should be presented to the Constituent Assembly,
as representing the official proposals of the Drafting Committee ; any
further proposals for amendment would be placed before the Assembly in
the form of appropriate motions. A repnnt of the Draft Constitution was
issued showing in parallel columns the provisions ctf the Draft together with the
amendments which at the time the Drafting Committee proposed to sponsor.

Discussions on the Draft Constitution took place in several stages.
Hiere was first a general discussionf mainly on the principles of the
Constitution, which took five days.

The clause by clause consideration of the Draft Constitution began on
November 15, 1948, and concluded on October 17, 1949. During this
period of eleven mon^N the Assembly was in session, with three breaks

PROGRESS OF THE CONSTITUTION THROUGH THE ASSEMBLY 117

from January 8 to May 15, June 17 to July 30 and September 19 to
October 5. Amendments were moved from time to time, both on behalf of
the Drafting Co mmitte e and by individual members of the Assembly, as and
when "^rSTaftiHe and schedule came up for consideration.

While the Assembly was considering the Draft Constitution, important
political developments were taking place in relation to the Indian States.
The processes of merger and integration of these States, which
had just beguHt when the Draft Constitution was issued, were
practically complete by October, 1949. To start with, the position was
that these States would accede to the Union of India through suitable
Instruments ; and their internal constitutions were not to be part of the
business of the Constituent Assembly. All this changed with remarkable
rapidity and the position as it finally emerged was that the States would
occupy the same position as the other units of the new Union of India;
and the new Constitution would also provide for their internal constitutions.
The fundamental rights provided in the Constitution would also extend to
them; so would adult franchise. And the same type of democratic
institutions as were being set up in the Provinces of India would also be set
up in the Indian States. The Constitution had, therefore, to be enlarged
to provide for these radical developments".

Another important development which took place during this period was
the abolition of special privileges for religious minorities. Separate
electorates, the reservation of seats in Legislatures, special arrangements
for representation in the public services and other similar political privileges
had featured as parts of the Indian political arrangements ever since the
early years of the century. Some of these arrangements were, in the earlier
phases of the discussion on the new Constitution, adopted for inclusion in
the new constitutional set-up. The committee in its re port on Mav — 11.
1949 recommended that any special safeguards would be required only for
the backward and depressed sections of the people such as the Scheduled
Castes and the Scheduled Tribes. This epoch-making decision was placed
before the Assembly on May 25, 1949, and adopted by it”.

The question of Centre-State relationship inevitably demanded a
considerable measure of attention. In July 1949, the Drafting Committee
held a conference with the Premiers of the Provinces and of some Indian
States and representatives of Central Ministries to discuss various matters,
especially those governing the administrative and financial relationship
between the new Union Centre and the States. The discussions covered a
wide range ; they included among other things financial relationship, the
legislative lists, the exercise of taxing "powers, the emergency provisions and
the composition of Legislative Councils in States. Items which claimed

■C. A Deb., Vol. X, pp. 161-8, 154-61 and 175-7.
mid.. Vo!. VIII, pp. 269-355.

118 •: FRAMING OB INDIA’S ■CONSTITUTION" ■

Special attention, were; the. exercise '-of', the powers "of States' to.:' .levy sales
taxes, and the: liability of the property of the Union "to ^ State" taxes . and" of
State property to taxation by the Union'.

Another subject' which claimed -.a considerable ■amount' of attention and
evoked' a. great 'deal of feeling was the language issue. This issue was kept
out Pf formal discussion in the Assembly ^ until the very end ; but the
indications were. that it might threaten to divide the whole Congress party
sharply ;on regional lines. Fortunately it was ' found possible To ..evolve a
formula: which proved acceptable to all — even if the acceptance was in
some res.pects "half-hearted.

Appropriate provisions for all these matters were made through suitable
amendments- to the- Constitution,

After all the articles had been adopted the Assembly adjourned for about
four weeks, the "Draft Constitution together with the amendments adopted
by the Assembly being again remitted to the Drafting Committee with
instructions to carry out such renumbering of the articles, clauses and
sub-clauses with necessary changes in punctuation and the revision and
completion of the marginal notes as might be necessary. On the completion
of the task, the Drafting Committee was to recommend such formal and
consequential or necessary amendments fo the Constitution as might be
required. In other words, the Drafting Committee had the onerous task of
incorporating all the amendments adopted by the Assembly and giving final
shape to the Constitution. This it completed in the course of a few weeks.

. The Draft Constitution as revised by the Drafting Committee contained
395 articles and eight schedules and was submitted to the President of the
Assembly on November 3, 1949^

Apart from the additions, deletions and amendments incorporated in this
revised Draft, the Drafting Committee gave notice of a number of further
amendments. Notice of amendments was also given by other members of
the Assembly. ; All these amendments were considered by the Assembly
on November 14, 15 and 16 and they were put to vote on November 16 .
On the next day, the Assembly proceeded to consider a motion by
Ambedkar that the Constitution as settled by the Assembly be passed. The
discussion on the motion concluded on November 26 when it was put to
the vote and the. Constitution adopted with enthusiastic support

^Select Documents IV, 15, pp. 659-704.
nbid., IV, 18, pp. 745^-932.

PREAMBLE

One of the first tasks to which the Constituent Assembly addressed itself
was the formulation of the objectives and the guiding principles that were
to be the basis of the constitution and reflect the democratic spirit of the
Constitution. As noticed earlier in the chapter on the historical background,
nationalist sentiment in India, led by the Indian National Congress, had
over the years stressed that no Constitution imposed by any outside
authority and no Constitution which curtailed the sovereignty of the Indian
people would be acceptable to the country.

This objective of freedom as the birthright of the nation Was always
linked with the reahzation that it would be the responsibility of free India,
with a Constitution based on democratic traditions, to bring about a just
social and economic order, to remove poverty and ignorance, and generally
to better the lot of the common man. The Congress had always regarded
its primary responsibility as being to emphasize its objective of an
independent and united India, with no scope for exploitation, and all the
diverse elements in the nation cooperating for the common good and
advancement of the people. Nehru particularly was clear about the vital
points that inspired the freedom movement. After the general elections of
1937, he had said :

We went to our people and spoke to them of freedom and the ending of
their exploitation ; we went to that forgotten creature, the Indian peasant,

, and remembered that his poverty was the basic problem of India ; we identi-
fied ourselves with him in his suffering and talked to him of how to get
rid of it through political and social freedom'.

With the announcement of the Cabinet Mission’s plan of May 16, 1946, j
the primary objecti-ve-.^ of__a Constituent Assembly, as envisaged in the I
aspirations”bf the National Cong^ress^’ during the several decades of its !
struggle for freedom, seemed to be within the grasp of the nation; not fully, '
because the scheme fell far short of the Congress demand. Despite its
shortcomings, the view prevailed that here was the longsought opportunity
for India to frame her own Constitution, and the Working Committee of
the Congress felt that, taken in their entirety, the proposals gave sufficient
scope for working out a constitution* for a free India. Accordingly, in its
resolution of June 24, 1946, the committee decided that the Congress
should join the Assembly with a view to framing the constitution for a free.

^Select Documents I, 24(1), p. 87.

120

FRAMING OF INDIA’S CONSTITUTION

united and democratic Indian

The objective of the Congress was clearly outlined in this resolution. It
was ‘Imiiiediate independence and the opening out of avenues leading to
the rapid advance of the masses economically and socially”, so that their
material standards might be raised; poverty, malnutrition, famine and lack
of the necessaries in life might' be ended; and all the people of the country
could have freedom and the opportunity to grow and develop according to
their genius.

' Apart from the ideals for which the Congress was striving, constitutional
precedents also- underlined the need for laying down objectives. In the
Constitution of the United States of America the purpose of the Union was
laid down as being to “establish justice, insure domestic tranquillity, provide
for the common defence, promote the general welfare and secure the blessings
of liberty to ourselves and our posterity”. The Irish Constitution had also
embodied national goals in its Preamble. In these circumstances it was perhaps
inevitable that the Experts Committee appointed by the Congress in July,
1946, to prepare material for the Assembly should have turned its mind to
the formulation of ‘‘objectives”. At its meeting of July 22, the committee
drew up a “declaration” which was to be moved after the appointment of
the Advisory Committee on Fundamental Rights. In wording, the Objectives
Resolution eventually moved in the Constituent Assembly by Nehru closely
followed the draft declaration framed by the committee^

The path of the Constituent Assembly was, however, by no means
smooth. Shortly after the Congress had agreed to join the Constituent
Assembly, the Muslim League withdrew its acceptance of the Cabinet
Mission’s plan, declaring that nothing less than Pakistan, inYoIving the
division of the country, would satisfy its demands.

Nevertheless, it was decided to go ahead with the convening of the
Assembly. Adopting a conciliatory attitude towards the Muslim League
and other parties, the Congress Working Committee said :

The committee realize that there are differences in the outlook and
objectives of the Congress and the Muslim League. Nevertheless, in the
larger interests of the country as a whole and of the freedom of the people
of India, the committee appeal for the cooperation of all those who seek
the freedom and the good of the country, in the hope that coopera-
tion in common tasks may lead to the solution of many of India’s

' ■ problems'l" . ■

The object^^^^ were again considered by the Congress and at its session
held ■ in . November, 1946, on The eve of the meeting of the ■ Constituent
Assembly, it adopted a resolution declaring that

^Select Documents I, 58, p. 279.

Hbid. I, 64(ii), p. 328-30.

^Congress resolution, August 10, 1946, Select Documents 1, 63(i), p. 314.

PREAMBLE

121

it stands for an independent sovereign republic wherein all powers and
authority are derived from the people, and for a constitution wherein social
objectives are laid down to promote ■ freedom, progress and equal
opportunity for all the people of India . . /

At the time of the Assembly’s first meeting on December 9, 1946, the
political atmosphere in the country was one of suspicion and uncertainty,
both of which were fostered by several factors. The Muslim League had
stubbornly resisted all efforts to persuade it to participate in the deliberations
of the Assembly. It sought encouragement from the British Government’s
statement of December 6. 1946, which had expressly stated that '"should
a constitution come to be framed by a Constituent Assembly in which a
large section of the Indian population had not been represented” the British
Government would not contemplate '"forcing such a constitution upon any
unwilling parts of the country”^ The absence of the Muslim League and
of the Indian States from the opening session of the Assembly added to
the complexities of the political situation and to the difficulties of the
Assembly’s task.

In this atmosphere of unpredictability in regard to the course of events
in the immediate future, the leaders of the Indian freedom movement set
a two-fold objective before themselves. They were labouring for freedom
and unity not for a party or a section but for the country as a whole. The
task on which they were determined to go ahead was the framing of a
constitution for India which promised both freedom and unity. Their
primary concern was with the declaration of the sovereign character of the
Constituent Assembly, notwithstanding the limitations under which it was
functioning: but without compromising on such a stand, they were anxious
to ensure that everything possible was done to enable the Muslim League,
the Indian States and all other elements in Indian political life to take part
in the work of constitution-makingl

All this was sought to be achieved by the Objectives Resolution drafted
by Jawaharlal Nehru and moved by him in the Assembly on December 13,
1946, four days after its first meeting. The resolution read:

(1) This Constituent Assembly declares its firm and solemn resolve to
proclaim India as an Independent Sovereign Republic and to draw up for
her future governance a constitution ;

(2) Wherein the territories that now comprise British India, the territories

that now form the Indian States, and such other parts of India as are
outside British India and the States as well as such other territories as are
willing to be constituted into the Independent Sovereign India, shall be a
Union' of them all; and •

^Select Documents 1, 64(v), pp. 342-3.

I, 65(iv), p. 348.

•^C. A, Deb., VoL !, pp. 56-62 and Vol. II, pp. 253-7: Select Documents Jl,. l(ii)
and (iii) pp. 4-18. Speeches of Nehru and Radhakrishnaij.

122

FRAMING OF INDIA’S 'CONSTITUTION

(3) Wherein the said territories, whether with their present bdundarles or
with such others as may be determined by the Constituent Assembly and
thereafter according. to' the law of the constitution, shall possess 'andTetain
the status of autonomous units, together with residuary powers, and exercise
all powers and functions of government and administration, save and except
such powers and functions as are vested in or assigned to the Union, or as

■ are inherent or implied in the Union or resulting therefrom ; and

(4) Wherein all power and authority of the Sovereign Independent India,
its constituent parts and organs of government, are derived from the
■ people and ■

' (5) Wherein shall be guaranteed and secured to ail the people of India

' justice, social, economic and political; equality of status, of opportunity,
and before the law; freedom of thought, expression, belief, faith, worship,
vocation, association and action, subject to law and public morality ; and

(6) Wherein adequate safeguards shall be provided for minorities, backward
and tribal areas, and depressed and other backward classes ; and

(7) Whereby shall be maintained the integrity of the territory of the
Republic and its sovereign rights on land, sea, and air according to justice
and the law of civilized nations ; and

(8) this ancient land attains its rightful and honoured place in the world
and makes its full and willing contribution to the promotion of world peace
and the welfare of mankind'.

In an eloquent and inspiring speech Nehru commended the resolution to
the acceptance of the Assembly,. The resolution was to be viewed by the
Assembly as a solemn pledge to the people to be redeemed in the Constitution
they w^ould frame: the resolution was a declaration, a firm resolve, a pledge,
an undertaking — and, for all, a dedication. It had been drafted after
mature deliberation and no effort had been spared to avoid all controversy.
The resolution dealt with fundamentals which were commonly clierisliec!
and accepted by the people. Nehru emphasized that it did not go beyond
the limitations laid down by the British Cabinet. They accepted the ‘White
Paper” which might be called the foundation of the Assembly and would
endeavour to work within its limits. At the same time the people of India
were the source from whom the Assembly derived its strength, and any
attempt on the part of the British Government at “imposition” or the
slightest /trace -of patronage would cause resentment; Earlier, Rajendra
Prasad as the President of the - Assembly had declared in a similar mood that
the Assembly with all its limitations was a sovereign body, with whOvSe
proceedings no outside power could meddle".

In a pointed reference to the Indian States, Nehru desired that the' .'people
of the States should completely share in the freedom that was to come; and

:'C. ' A*' '-DeLr Vol. I, p. 57; Select Documents II, l(i), pp. 3-4. '

Hbid,., p. 51. v...

PREAMBLE :

123

he :wa's -clear that in theframing-of the Constitution for 'India 'there'^shonlci be
the assoeiatidn of the/Tepresentatives of .the people of the States. It was 'not
■intended to ■ impO'Se anything, on the States against their will but to invite
their co-operation and assistance. ,

■'■.-‘Referring to the.absentees—the Muslim 'League .and' the States xepresenta-
;tiyed~~Nehru -expressied the ■, earnest. hope that' they too might' .come... into' the
■Asseiiibly. In the , meanwhile a: duty was cast •on the- m'embers to remember
always that they were not there to functiO'H for one party or one group "but
always to think of Indians a whole: ■

A time comes when, we have to, rise above party and- think of the, nation,
•• ■ think' 'Sometimes of even the world at large of which oiir nation is a great
: part. ■ ■ ^ ,

■ Anticipating perhaps -the difficulties ahead, Nehru referred to the French
National Assembly and the formidable challenge it had to face :

My mind goes back to that mighty revolution which took place also over
150 years ago and to that Constituent Assembly that met in that gracious
and lovely city of Paris which has fought so many battles for freedom, to
the difficiiities that that Constituent Assembly had and to how the King
and other authorities came. in its way, and still it continued. The House
will remember that when these difficulties came and even the room for a
meeting was denied to the then Constituent Assembly, they betook
themselves to an open tennis court and met there and took the oath, which
is called the Oath of the Tennis Court, that they continued meeting in
spite of Kings, in spite of the others, and did not disperse till they had finished
the task they had undertaken. Well, I trust that it is in that solemn spirit
that v/e too are meeting here and that we, too, whether we meet in this
chamber or other chambers, or in the fields or in the market-place, will

. go on meeting and continue our work till we have finished it.

About his experience in London . w.hich he had visited -on a personal
invitation from the,.B.ritish Prime Minister early in December, 1946. Nehru
^said:. -

, ■ It has been a blow to. me, and it has hurt me that- just at the moment when
we, are. going to stride, ahead, obstructions were placed in our way, new
.limitations were., mentioned which had not been mentioned previously; and
new, methods- of .procedure were . suggested. Ido not wish to challenge, the
....bona fides of. any .person'*, but I .wish to say that .whatever the legal ■ aspect
of the thing might be, there are moments when law is a very feeble reed
to rely _ upon, when we have to deal with a nation which is full of the
passipn for freedom. Most ...of 'us here during the past .many years,, for. a
'generatioh Of ' more,' have- often ^aken-part.- in ...the.' struggle' for India’s
freedom. We have,; gone ''through -the , 'r-valley of the., .shadow,.' We. are used
and if necessity arises, we-shali’ga through it againh^""

’■C. A, Deb., Vol. I, pp. 55-62, Select Documents II, IQi), pp. 7, V

124

FRAMING OF INDIA’S CONSTITUTION

The introduction of the resolution and Nehru’s speech— both in Hindustani
and English— took exactly an hoiur, and the Assembly felt uplifted by the
quiet but solemn words aSBrming the unbending resolve of the country to
march onward to its goal of freedom, whatever the obstacles in the way and
however long the struggle ahead might be. Nehru’s speech thrilled the
entire Assembly and seemed for the moment to transform the mood of the
House ; the atmosphere acquired a unique dignity, almost a religious
fervour’.

The resolution was debated on December 13, 16, 17. 18 and 19, 1946,
with most of the speakers enthusiastically supporting it. Some memliers
however wanted further consideration of the question to be postponed in
order to enable the Muslim League and the Indian States to participate in
the debate. M. R. Jayakar, who moved an amendment to this effect,
expressed the opinion that the Assembly had no power at that stage to
adopt any fundamentals of the Constitution; and that apart from the
legal point, considerations of expediency were in favour of postponing
discussion to a later stage. By adopting the simple device of not being
present, the Muslim League, he argued, could make the whole of the
work useless; and at least for a month or so (when the Assembly was due
to meet again) the way should be kept open for the League to take part in
its proceedings. In this view he was supported by Ambedkar, Frank
Anthony and Hriday Nath Kunzru; all the other speakers whole-heartedly
supported the resolution’.

Meanwhile statements had been made outside the Assembly on behalf of
the Rulers of the Indian States that, so far as the States were concerned,
power was derived from the sovereign and not from the people; and a
suggestion was made by Syamanandan Sahaya’ that the resolution should be
amended to meet their feelings. Dealing with this point, N. Gopalaswami
Ayyangar pointed out that the Cabinet Mission itself had, in its statement
of May 25, stipulated the “cession of sovereignty to the Indian people” on
the conclusion of the labours of the Constituent Assembly, and the words
“Indian people” included, in the overall context, also the people of the Indian
States. In any case, the claim of the Princes to be the repositories of all
legislative, executive and judicial powers, with provisions to that effect found
almost invariably in the written constitutions of most of the States, was
reminiscent of an “all-pervasive autocracy” and deserved to be swept away

‘For a description of the prevailing atmosphere, see the Hindu and The Hindustan
Times of December 14, 1946 and Indian Annual Register, July-December 1946, p. 335.

V. A. Deb,, Vol. I, pp. 69-78 ; Speech'of M. R. Jayakar. A formal amendment
seeking postponement of further consideration of the resolution was moved by
Jayakar on December 16, 1946. The amendment which was supported, among a
few others, bv Ambedkar and Kunzru, was withdrawn by the mover on Januarv 21,
1947. C. A. Deb., Vol. II, pp. 289-90.

nbid., p. 83. V

PREAMBLE

125

aad replaced by a provision to declare that all powers of government were
derived from the people’.

On the question of the structure of the republic, several members, m
supporting the resolution, made no secret of their preference for a “centralized
republic” with a strong Centre. Nevertheless, they were willing to accept
the scheme of autonomous units endowed with residuary powers, envisaged
in the resolution, in order to secure the cooperation of the Muslim League.
Moreover, the scheme was in accord with the Cabinet Mission’s plan which
they had no desire to transgressl

The socio-political objectives stipulated in the resolution were welcomed
by different sections of the Assembly. M. R. Masani supported the clear
rejection contained in the resolution of the existing social structure and the
gross inequalities prevailing in the country. As a democratic socialist who
felt that democracy needed to be extended from the political to the economic
and social spheres, he welcomed the resolution because it had the content of
economic democracy. From another point of view he commended the
resolution as a refutation of the argument sometimes put forward, that far-
reaching social and economic changes could not be made unless individual
liberty and democracy were first destroyed and that only an all-powerful
State could push its programmes through. The resolution, Masani said,
envisaged social justice in the full sense of the term but it worked for these
social changes through the mechanism of political democracy and individual
liberty*.

Alladi Krishnaswami Ayyar felt that the expression “justice, social,
economic and political”, while not committing the country and the Assembly
to any particular form of polity coming under any specific designation, was
intended to emphasize the fundamental aim of every democratic State.
Ambedkar expressed his disappointment with the content of the resolution;
he expected in it a clear enunciation of the doctrine of socialism. Another
member, V. D. Tripathi, felt that since the word “justice” could be
interpreted in diverse ways according to the predilection of those in power
at a given time, it was necessary to declare beforehand that the State to
be created under the Constitution would not be established on a capitalistic
basis*.

On December 21, further consideration of the resolution was postponed.
The Chairman expressed the hope that the absent members would take
part in the subsequent discussions. This hope was however not fulfilled.
The Assembly discussed the resolution again on January 20, 21 and 22,
1947. In the course of this discussion Radhakrishnan stated that republican

'C. /t. Vol. I, pp. 123-6.

mid., pp. 64-5, 86, 93-4, 99-100, 103: Speeches of P. D. Tandon, S. K. Siaha,
S. P. Mookerjee, Ambedkar and Ujjal Singh.

mid., pp. 90-2.

pp. 136-8, and Vol. Ill, p. 292.

126 FRAMING OF INMA’SvCONSTITUTO

India would .of-tlie British Commonwealth, because, .the

Dominions o! Australia, New Zealand, Canada or South Africa, she heither
shared 'a community of ideals with Britain' nor was-' she bound to,; her by
ties, of . race, religion; and- culture. : He ; added, .however, that even if India-,
elected to quit: the Gommonwealth, 'there: Were a;, hundred, ways .of voluntary
coo'peration in trade, defence and ' matters, of. culture, Whether or not all;
these forms '.of'-.mutuai ' cooperation.., would •in fact: develop depended eatire-ly
on ;the attitude ■ vAich:: Br,itain"'adopted::in .the-: crisis through-; which., Indo-Britisli
relatio-ns were then passing. Among others,- :,N.- V. Gadgil, Jagat Narain
Lai and .R;' V. Bhulekar urged “that -the future relations between the. , two
countries should .be conditioned by the .manner- Britain, conducted herself
towards the Constituent Assembly an.d the ultimate issue of the transfer of
power.to:India\ :

In. liis reply to' the -debate .on .January-. 22 , 1947, Nehru .dealt- at some
length, with . the Princes’ objection -to.,the- resolution and, the •question; of the
.Indian, Republic’s position ; the .British Commonwealth,. As ..rega.rds,

the hrst. point, -he had thought that- the divine .right -of ;-,Kings. had been-
''buried deep down the ^ earth--- long ages ago”. He added, however, that- the
resolution did not interfere with ^ the system of monarchy in, the States,- if
the people., of the 'States; chose to have that system;,- but it was - clear that,
whatever; the -'S-tates' might-, or might not- have, new- India was bound to, be
a.. republic-. Regarding- ''-the-' question of the future relations- be-tween India-
and the British Commonwealth, Nehru did not draw the conclusion .that
India’s, becoming' a -republic, -necessarily meant- her dissociation' -from Other
countries.' -.India- w-anted; to,.- be- .friendly with -the ..British- people .and the-
British'' Commonwealth-- and to -cooperate '.with. them... as- well
as with other countries;- -but-Teal cooperation" .would only .come ''when ; we
know .'that' we .are free., to- cooperate and --are- not imposed .upon and'.forced

to:, cQoptote”l"" ;■' ■' ■ ' ■' ■ '■ , "

' After, Nehru’s; speech, -all amendments, including that' of Jayakar for the
postponement of the-, -issue,., were withdrawnAand,. the -resolution was.adopte.d'
by-; the' Assembly in a solemn, manner— 'all the members -standing^ '

^C. A. Deb., Voi. 11, pp. 254-5, 259-60, 268-9, 283-4.

^ "299-302-., ; .•dii,-„a note suggesting -to- Nehru . certain " Hne-s -on -which -he

might refe.r to the, matter in .,his.., reply to- .the debate,. B. N. Rau„,ha(!. .observed that,
labe-is ..like the “British. Commonwealth”, had ceased to have m'uch signi:&c:ance,„ and "
no, longer governed the relations between the States— -for' instance, _'the U.S. A., " which ■"
had" been a republic .for' over ' iSO - years, had' fought M 'the 'two world wars'" on the.
same side' -as 'B.r.'itaM. ''wMl© Ireland'.' which '.was"- -treated-' as ,a Dominion had remained-
neutral in the second world war. Accordingly, the main thing to be emphasized
was, B. N. Rau suggested, that India’s relations with otherrmmbers, of 'the,,; international
community; iiic.ludmg--'the,;'"U..;'-,K'.-. and.-'‘-the:-.-:-Domi,.mons‘: -would .bc' oL the friendliest .;and
closest collaboration. B. N. Rm, Indians.: Constitution in the M 2nd edn.

pp. Ix-ixL ..■,4'-“-.

■ ^Ibid., -p. 304. ■ , , ... "v;- '

127

: , ^7 PREAMBLE

. .. Ie the eariy drafts of the^ U^ Constitution, the Preamble was a somewhat
formal affair. The one in B. N. Rau’s memorandum on the Union
Coustitution, dated May 30, 1947. read:

We, the people of India, seeking to promote the common good, do hereby,
through our chosen representatives, enact, adopt and give to ourselves this
Constitution.

Then came the Plan of June 3, 1947„ which led to the decision to partition
the country and to set up the two independent Dominions of India and
Pakistan. This produced an immediate and decisive swing in the Assembly
in favour of a strong Centre; and five days later, on June 8, a joint sub-
conunittee of the Union Constitution and Provincial Constitution Committees
took note that the Objectives Resolution would require amendment in view
of the latest announcement of the British Government. The announcement
of June 3. it may be recalled, made it clear that full independence, in the
form of Dominion Status, would be conferred on India as from August 15,
1947: also that if the Punjab and Bengal so decided, these Provinces: would
be partitioned and that East Bengal and West Punjab, together with Sind,
Baluchistan, North-West Frontier Province and the district of Sylhet in
Assam would form a new and independent Dominion of Pakistan. A
special sub-committee consisting of Gopalaswami Ayyangar, Alladi
Krishnaswami Ayyar, K. M. Munshi and B. N. Rau, was asked to examine
in detail the implications of partition'. The sub-committee thought that the
question of making changes in the Objectives Resolution could appropriately
be considered only “when effect had actually been given” to the June 3
planl The Union Constitution Committee provisionally accepted the
Preamble as drafted by. B. N. Rau and reproduced it in its report of
July 4, 1947’, without any change, with the tacit recognition at that stage
that the Preamble would finally be based on the Objectives
Resolution.

In a statement circulated to members of the Assembly on July 18, 1947,
Nehru inter alia observed that the Preamble was “covered more or less” by
the Objectives Resolution which it was intended to incorporate in the final
Constitution subject to “some modification on account of the political
changies resulting from partition”. Three days later, moving the report of
the Union Constitution Committee for the consideration of the Assembly,
he suggested that it was not necessary at that stage to consider the draft
of the Preamble since the Assembly stood by the basic principles laid. down,
in the ObjeQtives Resolution and these could be incorporated in the Preamble

'Joint sub-committee minutes, June 8, 1947. Select Documents II, 20(ih p. 6I6i. '
' ^Special sub-committee minutes, June '9, 1947. Later , bn July 12, 1947, the spfecial
sub committee again postponed consideration of the matter. Select Documents II,
20(ii), p. 617. ■ - . ■ :

•“Miiuites. June 30, 1947; Report, July 4, ' 1947. Se/eci Documents II, 16 and 18(i),
pp. 561, 575. ' ■ '. • ■ ■ ■■ '

128

FRAMING OF INDIA’S CONSTITUTION

itt the light of the changed situation^ The suggestion, was accepted by the
Assembly and further consideration of the Preamble was held over.

However, as a matter of form, in the October 7, 1947 draft of the
Constitution, the Preamble which B. N. Ran had originally recommended in
his May 30 memorandum on the Union Constitution was reproduced.

The Drafting Committee considered the Preamble at a number of its
meetings held during February 1948. The committee had little difficulty
in omitting that portion of the Objectives Resolution which declared that
the territories of India would retain, the status of autonomous units with
residuary powers. Two other committees had already made a positive
recommendation for a strong Centre with residuary powers'* and the
Assembly itself had given, sufficient indication of its approval of this new
pattern of relationship between the Union and the units^ The Drafting
Committee felt that the Preamble should be restricted to defining the essential
features of the new State and its basic socio-political objectives and that the
other matters dealt with in the resolution could be more appropriately
provided for in the substantive parts of the Constitution. Accordingly the
Preamble, as formulated by the committee and included in itsi February 1948
Draft of the Constitution, read as follows :

We, the people of India, having solemnly resolved to constitute India into
a Sovereign Democratic Republic and to secure to all its citizens ;

Justice, social, economic and political;

Liberty of thought, expression, belief, faith and worship ;

Equality of status and of opportunity ; and to promote among ail ;
Fraternity assuring the dignity of the individual and the unity of the Nation;

In our Constituent Assembly this of ( day of

May 1948 A.D.), do hereby adopt, enact and give to ourselves this
Constitution'^.

The Drafting Committee explained that while generally it had tried
embody in the Preamble the spirit and, as far as possible, the language of
the Objectives Resolution”, certain modifications were considered necessary.
Thus the phrase ‘‘Sovereign Democratic Republic” was adopted instead of
“Independent Sovereign Republic” since independence was implied in the
word “sovereign”. A new clause about “fraternity” was added, as, in the
opinion of the committee, the need for fraternal concord and goodwill in

^Nehru’s statement. Select Documents II, IS(ii), pp. 592-3 and C /I. Deb,, VoL
IV, p. 730.

“Union Constitution Committee Report, July 4, 1947. Select Documents il, iS(i),
p. 584; Union Powers Committee, Second Report, July 5, 1947. Select Documents II,
330), p. 777.

“C. A. Deb., Yols. IV & V. Debates on the second report of the Union Constitutioii
Committee (July 21, 23, 25 and 28-31, 1947) and debates on the second report of
the Union Powers Committee (August 20-22, 25 and 26, 1947).

^Minutes, February 6 and 9, and Draft Constitution, Documents III, 5 and
6, pp. 484, 489-90, 510, 517-8.

PREAMBLE

129

India was never greater than at that time and this particular aim. of the
Constitution required to be emphasized through a special mention in the
Preamble'.

When the Draft Constitution was circulated for eliciting opinion, there
were some interesting suggestions for the modification of the Preamble. For
instance, a Calcutta advocate wanted a definite provision in the Constitution
prescribing the method by which a decision for remaining in or going out
of the British Commonwealth would be taken. B. N. Rau saw no necessity
for such a specific provision since as a sovereign country India could adopt
any method of settling its relationship with the Commonwealth. The
members of the Drafting Committee themselves did not appear to be
unanimous at this stage on the precise implications of the use of the word
“republic” v/s-a-vw India’s membership of the Commonwealth. Soon after
the publication of the Draft Constitution, the Chairman of the Drafting
Committee, Ambedkar, came forward with a proposal for the replacement
of the word “republic” by the word “State”. However, another important
member of the committee, Alladi Krishnaswami Ayyar, expressed himself
categorically against any amendment of the Preamble at that stage. The
question of the inter-relation between India and Britain could come up
later, depending upon the kind of nexus that might be acceptable to both
countries. He was doubtful whether India could take up the same position
as the Dominions so long as race considerations seemed to dominate the
policies of three different Dominions^ When on March 23, 1948, the Drafting
Committee met again to consider the various amendments and comments in
respect of the Draft Constitution, it accepted the amendment to the
Preamble suggested by Ambedkar’. The Special Committee, which also went
into the matter a few days later, was of the view that the time was not
ripe for considering amendments to the Preamble and suggested that its
final form could be left to the decision of the Constituent Assembly*.

Commenting on Ambedkar’s amendment, subsequently incorporated by
the Drafting Committee in the October 1948 reprint of the Draft Constitution.
B. N. Rau observed in an elaborate note that in the changed and still
changing conception of the Commonwealth there was “room for a completely
independent State inside the Commonwealth”. Whatever description of
India might be adopted in the Preamble would not by itself suffice to
define effectively its relationship to the British Commonwealth. For instance,
Australia was a part of the British Commonwealth, even though its
Constitution described it as a “Commonwealth”, which literally meant the
same thing as a republic. Much the same could be said of Ireland and the

!' . m ■

^Draft Gonstltiitioi!. Select Documents lU^ 6, p. 510.

“CommeEts and Suggestions on the Draft Constitution. Select Documents IV, 1(iX
p.p, 5-8..

^Minutes, March 23, W Seiect Documents W, p.

^Minutes, April 10, 1948, Select Documents I(iii), pp. 408-9.

.'lO':"' '.v;

130

FRAMING OF INDIA’S CONSTITUTION

Union of South Africa. The question of India’s future relationship to the
Commonwealth would therefore have to be decided separately. Nevertheless,
he felt that the term ‘‘republic” had certain associations and its use in the
Preamble might give an impression that the question was being prejudged.
He counselled, therefore, that it might be wise to avoid the word “republic”'.
Some time later, giving his entirely personal views in another note,
he expressed the opinion that the concept of the Commonwealth had reached
a stage when even a State with a republican constitution might well be given
a place in it and urged that India might continue to remain in the
Commonwealth, not only because of ideological affinities based on common
institutions and traditions with the Commonwealth of Nations, but also for
many practical reasons’.

However, the controversy over the use of the word “republic” in the
Preamble, in so far as it had a bearing on the question of India’s continued
membership of the Commonwealth, lost all its force when by a Declaration^
adopted at the end of April 1949, the Governments of the various Common-
wealth countries announced their acceptance and recognition of India’s
continuing membership of the Commonwealth even after the adoption of
her new republican Constitution. The Declaration was ratified by the
Constituent Assembly on May 17, 1949, after two days’ debate\

Meanwhile, important developments had taken place in regard to the
Indian States establishing, as a fact, the principle that sovereign powers
vested in the people of those States and not in their Rulers. With the
completion of the processes of merger and of integration, all the States had
agreed that their constitutions should be framed by the Constituent Assembly
itself as an integral part of the Indian Constitution and their position as
constituent units should be the same as that of the rest of the country. As
Vallabhbhai Patel told the Constituent Assembly on October 12, 1949,
unlike the scheme of 1935, the new Constitution was “not an alliance
between democracies and dynasties, but a real union of the Indian people,
built oil the basic concept of the sovereignty of the people’”.

The draft Preamble was considered by the Assembly on October 17,
1949. The object of putting the Preamble last, the President of the Assembly
explained, was to see that it was in conformity with the Constitution as

/Comments and Suggestions on the Draft Constitution, Select Documents IV, l(i),
pp, 6-7.

/B. N. Rau, India's Constitution in the Makings 2nd edn., 1963, p. 383. B. N. Rau
realized that there were genuine political difficulties in the way of India’s continuing
to remain in the Commonwealth and he was anxious to do what he could to remove
them. Writing to Lord Jowitt, the then L^rd Chancellor of Britain, early in April
1949, he pleaded that those who desired India to remain in the Commonwealth
should make it as easy as possible for her to do so. Ibid., p, 381,

^For text of Declaration, see C. A. Deb,, Voi. VIII, p. 2.

mid,, pp, 2-72.

A, Deb., Vpl X^^p. 164. See also the Chapter on Indian States.

PREAMBLE

131

accepted. Accordingly, some amendments suggested by Hasrat Mohani —
for example, the one which sought to describe India as a “Union of Indian
Socialistic Republics to be called UISR on the lines of USSR”— which were
regarded as being inconsistent with the Constitution, as already adopted,
were negatived by the Assembly. An amendment, proposed by H. V.
Kamath, for prefixing to the Preamble the words “In the name of God”
evoked some animated discussion and provided one of those rare occasions
when the Assembly actually divided by a show of hands. The Ayes lost
(41 to 68) eventually, after some of the opponents of the amendment had
forcefully pleaded that the invocation of the name of God was inconsistent
with the freedom of faith which was not only promised in the Preamble
itself but was also guaranteed as a fundamental right'.

Then there was an amendment, proposed by Mrs. Pumima Banerji which
sought to recast the opening part of the Preamble to read “We on behalf
of the people of India from whom is derived aU power and authority of
Independent India...”, so that it might be made clear beyond any possibility
of doubt or dispute that sovereignty vested in the people of India. The
amendment was supported by Mahavir Tyagi and J. B. Kripalani. Ambedkar
maintained that the Preamble, as drafted, could convey no other meaning
than that the Constitution emanated from the people and “the sovereignty
to make this Constitution” vested in them. He therefore saw no justification
for accepting the amendment. Ambedkar also utilized the occasion to
allay certain apprehensions that India’s association with the Commonwealth
would in some way detract from the sovereignty of the people. Every
independent country, he said, must have some kind of a treaty with some
other countries, and there was no reason to suppose that a sovereign country
became less sovereign just because it had made a treaty with another
country”.

The spirit of the amendment, however, found a place in the phrase in
the final paragraph of the Preamble, “give to ourselves this Constitution”.
It may be relevant to add that the British Cabinet Mission’s original plan
of May 1946 had visualized approval of the Constitution by the British
Parliament on the completion of the labours of the Constituent Assembly.
Later developments in India, however, made it clear that it was desirable,
indeed essential, to proceed with all possible speed. Mountbatten, after
consultations with the British Government and with its full approval, had,
early in June 1947, advanced the date of the transfer of power from June
1948 to August 15, 1947. Once the transfer of power had taken place,
the question of the British Parliament’s subsequent approval could not
possibly arise. The sovereign character of the Constituent Assembly thus
^came automatic with the rapid march of events, without any controversy,

>C. A. Deb., Vol. X. pp. 432-42.

Hbid., pp. 45i-6,

132

FRAMING OF INDIA’S CONSTITUTION

and the words in the Preamble “give to ourselves this Constitution” ibecame
appropriate.- ' '

Hie: Preamble was adopted by the Assembly without any ; atteration.
Subsequently, the words , and figure-. “tMs- twenty-sixth ■ day of November,
1949 ” were introduced in the last paragraph ; to indicate the dale: -on which
the Constitution was finally adopted byvthe Constituent: Assembly.: :m! i; .

yjjS't j,!,;...

THE UNION AND ITS TERRITORY

The MAIN TASK before the Constituent Assembly was to devise a
constitutional structure embracing the' vvhole of the sub-continent in an
integrated ; framework. The variety and complexity of the, political
arrangements which existed in the sub-continent of India under British rule
made this task an extremely formidable one. Under the Government of India
Act. 1935, the territories comprised in ‘India’ fell into three broad categories.
Three-fifths of the sub-continent consisted of Governors’ Provinces and Chief
Commissioners’ Provinces. These areas formed part of “His Majesty’s
dominions”'and were, subject to the legislative and executive jurisdiction of
the Central and Provincial Legislatures and Governments in India.

The remaining two-fifths,, painted yellow on the Indian map, consisted of
Indian States. There were over five hundred of these States, ruled by the
Princes and Chiefs, exercising governmental powers in varying degrees. Some,
like the Nizam of Hyderabad, or the Rulers of Mysore, Baroda, Gwalior,
Travancore and Cochinj exercised full powers over their States; at the other
end were small estate holders, whose dominions did not extend beyond a few
square miles of territory and who were only allowed to exercise very limited
revenue and magisterial powers. Big or small, aU the States: were subject to
the paramountcy of the British Government exercised through the Grown
Representative in India, who in practice was the same functionary as the
Governor-Generar. ' - ■■ ;

In addition there were small bits of territory, known as tribal areas, in
Baluchistan, the North-West Frontier Province and on the north-east frontier.
Theoretically these areas were not part of British India; and before the
Government of India Act, 1935, came into force, they were governed under
powers delegated by the British Government under “foreign jurisdiction”^
ThafAct recited these functions as arising out of “treaty, grant, usage,
sufference dr otherwise” and contained an explicit provision enabling the
Governmeiit of India to exercise them. The actual extent of the authority
exercised in these areas varied from one area to another and depended on
the arrangement made with the' tribes in each area. In some of these areas
regular administration had been established, while in others the role of the
Government consisted in ensuring thtJt the tribesmen kept the peace and 'did
hot interfere with the safety of roads and other essential communications

^Government of India Act, 1935; also see' Chapter on Indian States. ■ ' :

’For a fuller description of foreign jurisdiction, see Cht^ter on' Indian States.

133

134

FRAMING OF INDU’S CONSTITUTION

established by it whether for purposes of frontier defence or trade with
neighbouring countries.

The British Cabinet Mission’s statement of May 16, 1946, envisaged the
setting up of a Union of India, embracing British India and the Indian States,
but the constitutional arrangements contemplated were extremely complicated.
So far as British India was concerned, the Union was to exercise functions in
relation to defence, external affairs and communications. The accession of
the States was to be a voluntary act on the part of each one of them, and
no powers were to be exercised by the Union in any of the States except on
matters in which jurisdiction had been ceded. As regards the future
administration of tribal areas, the statement contemplated that a scheme for
the administration of these areas would be drawn up by the Advisory
Committee on Fundamental Rights, Minorities and Tribal and Excluded
Areas’.

The Indian National Congress had, throughout its long campaign for
independence, continuously emphasized the unity and integrity of India with
a strong Centre. The plan outlined in the statement of May 16 would have
resulted in a weak Central Government with attenuated powers and functions.
Nevertheless, the leaders had accepted this plan, though with hesitation and
misgiving, in the hope that it would enable them to secure the cooperation
of the Muslim League and thereby preserve the unity and integrity of the
country. With the Muslim League’s insistent demand for partition and its
refusal to participate in the work of the Constituent Assembly, and as a result
of the British Government’s declaration that the Constitution framed by the
Assembly could not be forced on unwilling parts of the country, the
preservation of the unity of the country had become a matter of great
uncertainty. But so long as the hope remained that India might be preserved
as a united nation, the Congress, which had a massive majority in the
Assembly, was anxious to do nothing that might prejudice the prospect of
such unity. The Objectives Resolution contained a specific reference to the
unity of India and declared the resolve of the Assembly to draw up a
constitution for an independent sovereign republic

Wherein the territories that now comprise British India, the territories that
now form the Indian States, and such other parts of India as are outside
British India and the States as well as such other territories as are willing
to be constituted into the Independent Sovereign India, shall be a Union
of them alll

The memorandum on the Union Constitution drawn up by the
Constitutional Adviser on May 30, 1947, was the first attempt at a definition
of the principles on the basis of which Hhe new Constitution for India would
be drawn up; and so far as the territories to be included in the Union of

^Select Documents I, 48{i), pp. 209 ff.

2C. v4. Dei., Vol. II, p. m

THE UNION AND ITS TERRITORY

135

India were concerned, the memorandum reflected the prevailing uncertainties
m the political atmosphere. The relevant clause as drafted read :

The Union hereby established shall be a sovereign independent State known
as the Union of India and shall embrace all the territories included in
India under the Government of India Act, 1935: but save as otherwise
provided by or under treaty or agreement, only the territories included for
the time being in Schedule I shall be subject to the jurisdiction of the
Union’.

Schedule I as drafted by him mentioned all the Governors’ Provinces and
the Chief Commissioners’ Provinces, but the question marks placed against
some of them indicated the current doubts as to whether they would in fact
form part of the Union. As regards the Indian States, they were mentioned
under the generic description “acceding States”; but there was at the time
no certainty at all as to which of them would accede.

The note appended to the clause elaborated the doubts and difliculties
inherent in the situation. The first part of the clause, he explained, proceeded
on the basis of the Cabinet Mission plan : but the second part was necessitated
by the subsequent modification of the plan, according to which the
Constitution was not to be forced upon “unwilling parts of the country”.
Schedule I in its tentative, initial form was therefore intended to specify only
the “willing” parts at the date of the commencement of the Constitution. If
any other territories subsequently elected to come within Union jurisdiction,
the schedule was to be suitably modified. Thus there were four separate
categories of territories to be provided for: the “willing” parts of British
India, the other parts of British India whose willingness could not be taken
for granted, the Indian States and the tribal areas. The clause, B. N. Rau
added, could be compared with articles 2 and 3 of the Irish Constitution,
which defined “national territory” as consisting of the whole island of Ireland,
its islands and the territorial sea, but contented itself with laying down that
“pending reintegration of the national territory” the extent of application of
the laws of the Irish Parliament would be limited to what was previously
the Irish Free State. The parts of India not specified in the schedule would
be in the Union but not of it.

The memorandum also included a clause providing that the authorities
established by or under the Constitution would succeed to the jurisdiction
and powers of the British Government in regard to the Provinces included
in the schedule and to the jurisdiction and powers of the Rulers in regard to
the Indian States to the extent to which they ceded theml

This memorandum came up before the Union Constitution Committee for
consideration in June 1947. During ’this period of a few days momentous
changes had taken place in the political situation which affected the

'^Select Documents II, 15(ii), p. 471.

Hbid., clause 4, p. 472.

136

FRAMING : OF .INDIA’S' COMSTlTOtlON

fujadaniental bases ■ of ■ ■ the , ■ proposed Constitution. With ■. the British
Government’s statement of June 3, it. had become obvious that the territory
of the proposed Union' of India could not embrace the whole of ''British
India”;-'

'"■The Union Constitution Committee' addressed itself to the following
questions: '

(i) Was the future State of India to be described as a Union -or a
Federation?

'■ (ii)' Should it be called "India.” or by some other name?

(hi) What territories were to be included in it?

'■"'The committee preferred to describe the future State as the "Federation' of
India” rather than the “Union of India”, as the structure proposed to be
established by the Constitution was to be federal in character. As for the
name of the State, the Committee explained that “India” had been chosen
as being the shortest and the most comprehensive. Accordingly, in its report
of July 4, 1947, the committee described the name and territory of the
Federation as follows :

The Federation hereby established shall be a sovereign independent
Republic known as India.

Save as otherwise provided by or under this Constitution or any treaty or
agreement, the territories included for the time being in Schedule I shall
‘ be subject to the jurisdiction of the Federationh

The territories mentioned in the schedule fell again into three categories —
Governors’ Provinces, Chief Commissioners’ Provinces and Indian States.
While the Governors’ Provinces and the Chief Commissioners’ Provinces were
automatically to become subject to the jurisdiction of the Federation of India,
the committee remarked that some procedure would have to be prescribed
for detennming which of the Indian States were to be included initially in
the schedule. No specific proposal was made at this stage. The committee
hierely drew attention to the fact that under the Government of India Act,
1935, accession was to be evidenced by “Instruments of Accession” executed
by the Rulers, and stated that if it was considered undesirable to use this
term or to adopt this procedure, some other kind of ratification might have
to be prescribed.

Meanwhile the Indian Independence Act, 1947, settled all doubts about the
British Indian portion of the territory to be included in India, but left the
position of the States vague and uncertain. India was to comprise all the
territories included in British India immediately before August 15, 1947,

with the exception of the territories of East Bengal, West Punjab, Sind and
British'', 'Baluchistan, which were inclifded in ; Pakistan.,. 'The ' North-West
Frontier Province and the district of Sylhet in Assam were also included in
Pakistan as a result of referenda held in those areas. The boundaries of

^Select Documents II, i8(i), p. 575.

' : fHB’ ::UN10N . AN0; ■ ITS tERElTORY

137

East' Punjab- and West Eengal-^the. two- Provinces" wMcli' were to- -be' b.arved
out by the-' division ■ of- 'Punjab ■ --Md ^ Bengal -and' .■■the■'^bouildaries of
the ■ Sylhef district- which - was • ^ to to Pakistan- -were -settled

by a "B-oundary '■Conirnission,--- Provisional- boundaries ‘were '■ however
laid 'down "in the''AcPi'' ■ ■- '

: Accordingly ^ the -Union ■Constitution "Gommittee-' included’- in -Itidia-^ the
Governors’' Provinces of 'Ma’dras, ■■Bombay, West- Bengal, the United Provinces,
East - Punjab, Bihar, the Central Provinces and Berar, Assam ''and OrissUl and
the Chief Commissioners’' Provinces -of Delhi, ‘ Ajmer-Merwar'a, Codrg; the
Andaman and Nicobar Islands and Panth Piploda. The position of the
Indian States and of the tribal areas was still^iiot clear; the June 3 statement
only referred to the tribes of the North-West Frdhtief and said that agfeenients
with the tribes of this area would have to be negotiated by the -appro^iat^
successor authority. The Act went one step further; - it prdvided’'Tor the
complete termination of ail jurisdiction in‘ all the tribal areas as ‘ well as
the Indian States. Existing arrangements of aii administrative Character;' such
as arrangements relating to customs, transit ahd comihunicatidns^^^^^^
telegraphs, or other like matters 'woul(3'' bbntiriue in force but' cou^^^^^^ be
terminated at will by either party.’ '-' The future position of the States and
the tribal areas in the Indian constitutional structure Was 'to be settled by
negotiation. ' ‘ " ' " ' ’

These were the problems which the Cohkituent' Assenibly^ f^^^ at the time
of partition. At this stage the issue’ was raised about the 'ihternatibnai status
of the Indian Dominion consequent on partition. The Muslim League
advanced the argument that ' the riecessai^^^ cohsequehce ’ 6f " the decision to
partition India was' that the old territory of India would cease to exist as a
separate entity with effect from' the appointed day--~August 15, /1947r“and
two new States, new in every respect, Wbiild be created. The Congress, on
the other hand, maintaihed that the effect of the" Indian independence Act
would be to continue the old Britis^^ India as a political entity the

climiniition of territory separated to form the hew State, namely ‘ the ^D
of Pakistan. Commenting, on the issue B. N.‘ feau Held, that the Dominion
of India would continue to possess the internatipnal personal% pre-
partitioned India, retaining the territory that was not specifically included
in Pakistan, and that, no proposal should be agreed to which .might throw
doubt' bn this .position. .-...r'.". '

This matter was also raised s^puratdy^, with, reference , to th^^ issues of
IndiaV mernbeo^^ United Nations and., of ..the.. pas.rin^ .of 4reat^

obligations as a consequence of the Indian .Independence Act, 1947, which
created the two new Dominions of Ilidia and Pakistap.^ The following, is a
summary of the discusrions in the United Nations :

In 1947 the territory of India, a founder-member of the United Nations, was

^Select Documents I, 86, pp. 539-40.

138

framing of India’s constitution

split into two— India and Pakistan. A transfer of sovereignty took place
and the Secretariat was faced with deciding what consequences this had on
the status of the member state and whether the new state, Pakistan, succeeded
to the rights and duties of a member under the Charter. The Assistant
Secretary-General in charge of the Legal Department offered the opinion
that the partition of India was not a case of dismemberment ; rather part
of the existing state had broken off and formed a new state. Consequently,
the treaty obligations of India- remained the same. He was also of the opinion
that the profound constitutional changes which India has undergone did not
affect its treaty commitments. On this reasoning, Pakistan was therefore
required to apply for membership, for that portion of the territory did not
succeed to India’s treaty rights and obligations. That Pakistan should have
to apply for membership was a view subjected to some criticism in the
General Assembly ; as a result, the Sixth Committee was requested to draw
up rules which might be applied to future cases, though they would have
no application to the present case. After lengthy discussion, - the Sixth
Committee informed the Assembly that as a general principle a member
state did not cease to be a member simply because its constitution or its
frontier had been subjected to change; before its rights and obligations
could be said to have ceased to exist it was necessary to show
its demise as a legal personality. Moreover, where a new state was born,
even if it formed part of the territory of a member, it could not claim
to have succeeded to right of membership, and a new application
must be submitted.

The Indian Independence (International Arrangements) Order of 1947 —
res inter alios acta so far as the United Nations was concerned — provided
that both India and Pakistan would succeed to rights and obligations under
all treaties to which India had been a party, with the exception of member-
ship in international organizations and agreements applying exclusively to
the territory of only one of the dominions. Although it is generally agreed
that essentially political treaties do not, under general international law, pass
to a new state, the Secretariat showed no objection to Pakistan signing
protocols providing for the suppression of Traffic in Women and Children
of 1921, and the Convention on Obscene Publications in 1923. The implication
is that the fact that these were economic and social treaties, rather than
political treaties, was considered significant. The arrangements between India
and Pakistan were probably not telling in this matter, for they were in no
way binding upon the United Nations. Pakistan submitted a declaration
wbicb stated that it considered itself a party to the conventions owing to
the fact that India had been a party b^ore August 1947^

The Draft Constitution prepared by the Constitutional Adviser in October,

’Rosalyn Higgins, The Development of International Law through the Political
Organs of the United Nations^ pp, 321-2.

THE UNION AND ITS TERRITORY

139

1947 provided for the name and territory of the proposed Federation of India
as follows ;

(1) As from the date of commencement of this Constitution ‘India’ shall be
a Federation.

(2) The territories of the Federation shall consist of—

(a) the Provinces, hereinafter called Governors’ Provinces,

(b) the Provinces, hereinafter called Chief Commissioners’ Provinces, and

this Constitution, hereinafter called Federated States.

(3) On and after such date as may be appointed in this behalf by Act of the
Federal Parliament, each unit of the Federation shall be called a ‘State’’.

The Sub-Committee on the North-East Frontier (Assam) Tribal and
Excluded Areas had meanwhile reported that the tribal areas in Assam
should be included in that Province, but that their administration should be
carried on for the time being by the Central Government through the Assam
Governor as its agent. Provision was accordingly made for this purpose in
the Eighth Schedule in this draft. As a result of the partition, the tribal areas
in the North-West Frontier and Baluchistan became the concern of Pakistan.

Following the language of the preamble to the British North America Act,
1867, the Drafting Committee decided to use the term “Union” instead of
“Federation”. The committee observed that nothing of real significance
turned on the name; but it felt that there were advantages in describing India
a.s a Union, although its Constitution might be federal jn structure. ITie
territories of India were divided into three categories;

(a) the territories of the States.

(b) the Andaman and Nicobar Islands,

The States were listed in Parts I, II and III of the First Schedule, comprising
the Governors’ Provinces, the Chief Commissioners’ Provinces of Delhi,
Ajmer-Merwara (including Panth Piploda) and Coorg, and the Indian States
which were within the Dominion of India immediately before the
commencement of the Constitution. With regard to the Indian States it
was observed that it was not possible to enumerate each of these States
separately, because owing to mergers of various kinds many of them might
be absorbed into larger units. It would be necessary, however, to enumerate
all of them by name before the Constitution was finally adoptedl

When the Draft Constitution, as prepared by the Drafting Committee, was
published and circulated for eliciting opinion, some representatives of the
Indian States in the Constituent Assembly objected to the description of
India as a “Union of States” and also to the provision regarding the territories

'Select Documents III, l(i), p. 4.

®Draft Constitution, para. 3 of Ambedkar’s forwarding letter, article I, and First
Schedule. Select Documents 111, 6, pp. 510-1.

140

FR-AMlNa'-QF imiA^S CONSflT0'I'lON

of States., '-being included; within' the. territoty^of-'- India;"::- Id-' 'a

memorandum, V. T. Krishnamachari of Jaipur, B. H. Zaidi of Rampur*
Sardar Singhji of Jaipur and Jaidev Singh ji of Patiala^argued that in wiew
of the traditional polity of the States, their position in the constitutional set-up
of India, and the fact that the rulers of the States would continue to be the
heads of the States as constitutional monarchSi, it would be desirable to
maintain' in the Constitution a distinction between the Indian States and the
Provinces by a suitable differentiation in nomenclature : they pointed out
further that since the States had acceded to the Union in respect' Of only
certain specified subjects, it would not be a reflection of the correct position
to describe their territories as part of the territory of India.

' Alladi Krishnaswami Ayyar, refuting these arguments, said in a note :

: There is no substance in the objection that the territory of the Indian States

Is not part of the territory of the Union. The territory of the Common-^

. wealth in Australia corresponds somewhat to clauses- (b) and (c); The
^ differences in the extent of power which is wielded by the Union in different

areas do not determine the ‘ question whether it is part of the Union
:! Territory or not\

Moving the Draft Constitution for the consideration of the Constituent
Assembly on . November 4, 1948, Ambedkar explained the significance of the
use of the expression “Union” instead of the expression '‘Federation”. -
' It is true that South Africa v/hich is a unitary State is described as a
Union. But Canada which is a Federation is also called -a Union. Thus
the description of India as a Union, though its constitution is federaiv does
no violence to usage. But what is important is that the use of the word
‘Union’ is deliberate. I do not know why the word ‘Union’ was used in
the Canadian Constitution. But I can ; tell you why the Drafting Committee
has used if. The Drafting Committee wanted to make it clear that though
. India waS; to be a federation, the federation was not the result of ah
: agreement by the States to join in a federation, and that the federation not
.. being the psult of an agreement, no State, has the right to secede from it.
The tederation is a Union because it. is indestructible, Though the country
. - and.the people may be divided into different States for convenience of
administration, the country Is one integral whole, its people a single people
living under a ; single : derived a single source.

The Americans ihad to: wage ;a civiL war : to establish .that the
States have . no right of ; secession - ; and that their federation ' Was
r indestructible,. . The Drafting, Committee -thought was better to
- make, it ^t the outset rather jthan ' to i: leave it to ’ speculation or to

dispute, 1. . , ^ - .it,., ■ " V ■

The Drafting Committee clearly attached great importance to the use of

Comments and Suggestions on the Draft Constitutioh, Select Ddcuments IV Ifi)

pp. '21142,^27. :■ 'r-:

C. A. Del?., Vol. VH p. 43.' ' ’■ ^

THE UNION AND ITS TERRITORY

141

the term “Unioa” as symbolic of the determination of the Assembly to
maintain the unity of the country. This was evident from the discussions bn.
draft article 1 in the Assembly on November 15, 1948. i .

Several amendments :were moved mainly with a view to changing the
name of the country from “India” to “Union of India”, : “Iharat”,
“Bharatvarsha”, ‘^Hindustan” and so on . or to changing its description from
“a Union of States” to “a Federation of StateS'^ or to substituting tihe word
“State” by “Pradesh” or “Province”'. Discarding a suggestion that i India
should be known as the “Union of India” Ambedkar said: ■ •

This is unnecessary because we have all along meant that this country
should be known as India, without giving any indication as to what
are the relations of the component parts of the Indian Union in the very
'title of the name of the country. India has been known as India throughout
history and throughout all these past years. As a member of the UN
the narrie of the country is India and all agreements are signed as suchl . .

An amendment moved by K. T. Shah sought to describe India as “a
Secular Federal Socialist Union of States”. It was strongly opposed* by
H. V. Kamath who observed that the tendency to disintegrate in India’s body
politic had been so rampant in history that in order to curb it in future it
was necessary not to use the word “federal”. Dealing with another, aspect
of the- same amendment, Ambedkar pointed out that it was not proper to tie
down the people to live in a particular form of social organization, . Social
and economic policies were not matters to be laid down in the Constitution:
they should be left to be decided by the future Legislatures according to lame
and circumstances’. ’

H. V. Kamath, G. S. Gupta and L. K. Maitra were critical of the, use of
the expression “States” to describe the constituent units. This conveyed an
idea of sovereignty and might give rise to controversies at a later stage with
the States contending that they were absolutely sovereign entities. Replying,
Nehru said: “A State is just what you define it to be. You define in this.
Constitution the exact powers of your units. It does not become something
less if you call it a Pradesh or Province’’*.

The debate on the article Continued on November 17, 1948, but was
postponed in order to make an eflfort to obtain a measure of unanimity of
opinion in regard to the name of the country.

On September 17, 1949, Ambedkar suggested a revised draft of the first
two clauses which read as follows-/ ,

(1) India, that is Bharat, shall be a Union, of States. ^ ^

(2) The States and their territories thereof shall be the States and territories
for the time being specified in Pa»ts I, ll and III of the First Schedule;

'C. A. Deb., Vol. VII, pp. 398 ff.

2/Wd., p. 422.

Hbid., pp. 399-403.

'Ibid., pp. 404-li. •

142

FRAMING OF INDIA’S CONSTITUTION

Ambedkar did not give any detailed explanation for the change. The
effort at securing unanimity did not apparently succeed, for there was
considerable and animated discussion on the redraft. Hasrat Mohani strongly
pleaded for calling India a Union of Indian Socialist Republics.
H. V. Kamath, Govind Das and others pleaded for redrafting clause (1) to
read “Bharat, or in the English language^ India” on the ground that it was
a fact that from ancient times, the country was known as Bharat and that
the name India came into use later when the Greeks came to India and

named the Sindhu rivers as Indus. Govind Das pointed out that the

name “Bharat” could be traced to the most ancient literature of
India and was the only name befitting the history and culture of
the country.

All the amendments, except the one moved by Ambedkar, were negatived
and draft article 1, as modified by him, was adopted to be added to the

Constitution'. But voting on the name was fairly close, 38 being for

Kamath’s amendment and 51 against it.

At the revision stage, the four parts of the First Schedule were reclassified
as Parts A, B, C, and D.

On the question of the admission or the establishment of new States,
B. N. Rau’s memorandum included a clause enabling the Parliament of the
Union from time to time by an Act to include new territories in Schedule I
upon such terms as it thought fit. This provision, which followed a similar
provision in the Constitutions of Australia and the United States, was non-
controversial and was adopted at the various stages with textual changes.
The article as finally adopted (article 2) read:

Parliament may by law admit into the Union, or establish, new States on
such terms and conditions as it thinks fit.

B. N. Rau’s memorandum also contained provisions on the lines of section
290 of the Government of India Act of 1935, enabling Parliament to create
new Provinces, increase or diminish the area of Provinces or to alter their
boundaries: but the consent of the Legislature of every Province affected was
necessary before Parliament could pass such a law. The Union Constitution
Committee widened the scope of the provision to all units, so as to include
Indian States also, and included the power to change the name of any unit".
The substance of the provision was accepted by the Drafting Committee and
in its Draft published in February 1948 it included an article embodying this
power. In this article a proviso was included that no Bill for these purposes
could be introduced in Parliament except by the Government of India. Some
further conditions (recognized later as confusing) were also laid down: such
a Bill could be introduced only if a representation was made by a majority
of the representatives of the territory in the Legislature of the State from

‘C. A. Deb., Vol. IX, pp. 1669, 1673-91.

^Select Documents II,,15(ii) and 18(i), pp. 471-2, 575-6,

THE UNION AND ITS TERRITORY

143

which it was to be separated or excluded; or if a resolution had been passed
by the Legislature of the State whose boundaries or name would be , affected.
It was also laid down that a Bill of this nature would require consultation
with the Legislatures, of the units in the case of laws affecting Provinces and
previous consent in the case of Indian States'.

On the question of the previous consent of the units being obtained there
was divergence of opinion. Sachchidananda Sinha was in favour of such
consent being invariably obtained'. On the other hand, the. West Bengal
Legislative Assembly was of the view that it was not desirable to
place any such restriction on the introduction of such a Bill, because
no State Legislature could be expected to agree to any proposal affecting
its areas adverselyl

After considering all these suggestions the Drafting Committee decided to
redraft the proviso as follows:

Provided that no Bill for the purpose shall be introduced in either House
of Parliament except on the recommendation of the President and
unless —

(a) where the proposal contained in the Bill affects the boundaries or
name of any State or States for the time being specified in Part I of the
First Schedule, the views of the Legislature of the State, or as the
case may be, of each of the States both with respect to the proposal
to introduce the Bill and with respect to the provisions thereof have
been ascertained by the President ; and

(b) where such proposal affects the boundaries or name of any State or
States for the time being specified in Part III of the First Schedule,
the previous consent of the State, or as the case may be, of each of
the States to the proposal has been obtained'.

The Constitutional Adviser pointed out :

Under the revised draft of this article as proposed by the Drafting
Committee, it will be necessary only to obtain the recommendation of the
President before the introduction of a Bill and to ascertain the views of
the Legislatures of the State or States whose boundaries or name are affected
with respect to the proposal to introduce the Bill and with respect to the
provisions thereof. The first condition has been imposed to prevent
the introduction of frivolous Bills for any of the purposes mentioned in
article 3. The second condition which is based on the existing provisions
of section 290 of the Government of India Act, 1935, and which requires
the views of the Legislatures of the States to be ascertained and placed
before Parliament is necessary to enable Parliament to take into account

^Select Documents III, 6, p. 519.

Comments and Suggestions on the Draft Constitution* Select Documents IV,
l(i), p. 9.

^Drafting Committee Minutes, March 23, 1948; Special Committee Minutes, April
II, 1947. Select Documents IV, i(ii), p. 393.

144

FRAMING OF INDIA’S CONSTITUTION

.such views . before coming: : to any: decision. ^ It. would however be open
i! ' to: Parliament either ito. accept, of reject the views expressed by such

fiO:-!.;S£ates^:: -A yi :. i'.;. :■

Draft artide .3 :was taken up for consideration in the Constituent Assembly
on November 17, 1948, when Ambedkar . moved this draft proviso as an
amendment’. . Meanwhile,! K, ;T. Shah had moved, an amendment to the effect
that any legislation affectingi the idrea,., boundaries or name of an existing State
should originate ini the Legislature 1 of the Statercoocemed’.

■ Ambedkar pointed out that the proviso moved by him covered Shah’s point.
He did mot 'have the least doubt that the method of consulting the States would
beiifor: the. President .to. ask the Chief Minister or the Governor to have a
resolution tabled which might be discussed in the particular State Legislature
so that ultimately the initiation would be by . the local Legislature and not
by Parliament.

Explaining the other, changes proposed to be effected by his amendment,
Ambedkar said that it sought to delete the provision giving the power to
introduce a Bill exclusively to the Government of India; all that was required
■Was 'that' any Bill, whether sponsored by the Government or by a private
fti'einbet, should have the recommendation of the President. This was being
done in view of- the representations made to the Drafting Committee that the
Original provision was somewhat severe and needlessly curtailed the rights
of "private riiembers of Parliament; Secondly, under the proposed amendment
all that was required for the purpose of the introduction of a Bill in so far
a-s it affected the States in Part was consultation; in other words, no consent
was necessary. Only in regard to the Indian States was the consent of the
State concerned made a prerequisite. The distinction, Ambedkar explained,
was based on the fact that under the position then existing Provinces were
different from the Indian States. Since the former were not sovereign the
Government was not bound to await their consent for changing their
boundaries, while such consent was necessary in the case of the latter who
ieraaihed sovereign*. ■ ’■" '

' There was a lively and prolonged debate on the article and on Ambedkar’s
aiiiehdment to redraft the pro-viso. The discussion centred round the question
of the distinction sought to be made between the Provinces and the States.
H. N! Kunzrumtloved ah- amendment seeking to place the Provinces and the
Indian States on the same footing by providing that in the case of Indian
States also' consent should not be necessary for any ' reorganization of their
territories and that consultation should be sufficient, both in the case of the
Provinces and the Indian States. In this connection Kunzru drew the attention

^Comments and Suggestions on the Draft Constitution/ Select Dommenfs IV, l(i),

^ '

C. A. DeK VoL VII, p. 439.

' ' '' , ' . ' _ ^ ■ ■

, pp. 439-40. s

THE UNION AND ITS TERRITORY'

U5:

of the Assembly to a number of provisions in the Draft Constitution which
placed the Indian States in the same position as Provinces'.

In his reply, Amhedkar dealt at some length with Kunzru’s points. He
made it clear that Kunzru’s amendment had a great deal of his sympathy and
it' was unfortunate that in the then existing circumstances it was not possible
for him to accept it. He felt that the Assembly would he acting wisely by
respecting the agreement arrived at by the Negotiating Committees until, by
further agreement, and with goodwill, peace and honour to both sides, it was
found possible to change the position. Ambedkar’s amendment and draft
article 3, as amended thereby, were adoptedl
As the process of constitution-making was reaching its final stage the
position of the Indian States had radically changed. It was no longer
necessary to place the Indian States on a different footing from the Provinces
in the matter of their constitutional relationship with the Centre and their
internal set-up. Several provisions of the Draft Constitution concerning the
States were reviewed in the light of the changed position with a view to
removing disparities between the States and the Provinces and to placing the
two on a basis of complete equality. Discussion on article 3 was reopened
in the Assembly on October 13, 1949, for the purpose of carrying out a
consequential amendment which sought to redraft parts (a) and (b) of the
proviso as follows :

Where the proposal contained in the Bill affects the boundaries of any State
or States for the time being specified in Part I or Part HI of the First
Schedule, or the name or names of any such State or States, the views of
the Legislature of the State or, as the case may be, of each of the States
both with respect to the proposal to introduce the Bill and with respect to
the provisions thereof have been ascertained by the President,

This amendment sought to do away with the distinction between the States
in Part III (Indian States) and the States in Part I (Provinces) in respect of
terntorial readjustments. The amendment was moved by T. T.
Krishnamachari on behalf of the Drafting Committee. Although even at that
stage several dissenting voices were raised, the amendment was adopted by
the Assembly\ and article 3 assumed the form in which it was finally placed
in the' 'Constitution.,

Glauses 2 and 3(2) of the Draft Constitution prepared by the Constitutional
Adviser in October 1947 provided that when any changes were made by
Parliament by law for admitting any new territories, creating any new units
or altering the ' boundaries, areas or names of any existing units, the First
Schedule should be deemed to have stood amended thereby as from the date
of eommencement of such law. The principle was accepted ' by ■ the Drafting

A, Dek. VoL VI!, pp. 441-3. ' '
pp. 458-9, 461-2 and 465.

X, pp. 161-S {Patel’s speech) and 210.

V&/U,,pp.'2!0-5.

■I{ . ' ■ ■ ■ ■

146

FRAMING OF INDIA’S CONSTITUTION

Committee and incorporated in its February 1948 Draft Constitution as
article 4:

(1) Any law referred to in article 2 or article 3 of this Constitution shall
contain such provisions for the amendment of the First Schedule as may be
necessary to give effect to the provisions of the law and may also contain
such incidental and consequential provisions as Parliament may deem
necessary.

(2) No such law as aforesaid shall be deemed to be an amendment of this
Constitution for the purposes of article 304\

Draft article 4 proved non-controversial and had a smooth passage through
the: various stages. This article came up before the Assembly for discussion
on November 18, 1948, and was adopted without any modification^
Subsequently, by way of clarification, clause (1) was amplified to include
a reference to the amendment of the Fourth Schedule also along with the
First Schedule and to lay down that the incidental and consequential
provisions referred to in clause (1) would include provisions as to
representation in Parliament and in the Legislatures of affected States. With
these and a few other changes of a drafting nature article 4 assumed its
present form.

NOTE ON AMENDMENTS

Article 1

1. The Constitution (Seventh Amendment) Act, 1956, in giving effect to
the scheme of States’ reorganization, made fundamental changes both in the
nomenclature and the description of the constituent units of India. Article 1(2)
as passed in 1949 had laid down that the States and the territories of
the States would be as described in Parts A, B, and C in the First Schedule;
and according to article 1(3), the territory of India consisted of the territories
of the States, the territories specified in Part D of the First Schedule (the
Andaman and Nicobar Islands), and such other territories as might be
acquired. This classification was abolished by the Act of 1956, which
declared that the territory of India would comprise the territories of the
States, the Union territories and such other territories as might be acquired.
There was to be no longer any distinction between Part A States and Part
B States; and Part C States were all classified as Union territories. Article 1
was amended to give effect to these changes.

The Act also made important changes in the First Schedule. There
were now to be fourteen States— Andhra PTadesh, Assam, Bihar, Bombay,
Kerala, Madhya Pradesh, Madras, •Mysore, Orissa, Punjab, Rajasthan,
Uttar Pradesh, West Bengal, and Jammu and Kashmir — and six Union

^Select Documents III, 6, p. 519.

K:. A. Deb., Vol. VI], pp. 465-9.

THE UNION AND ITS TERRITORY

147

Territories — Delhi, Himachal Pradesh. Manipur, Tripura, the Andaman and
Nicobar Islands and a group of small islands off the Malabar coast in South
India called the Laccadive, Minicoy and Amindivi Islands.

These amendments came into force on November 1, 1956.

2. The First Schedule was again amended by the Constitution (Ninth
Amendment) Act, 1960. Certain Indo-Pakistan agreements made in 1958,
1959 and 1960 which settled some boundary disputes relating to the Assam.
West Bengal, East Punjab and Tripura borders involved the transfer of
some territories to Pakistan after demarcation. The Act provided for the
necessary amendments to the First Schedule relating to the extent of the
territories of the relevant States. These amendments were to come into
force on dates to be notified by the Central Government after transfer of
the respective territories to Pakistan had been effected.

3. Under the Bombay Reorganization Act, 1960, the State of Bombay
was to be reorganized into two separate States — Gujarat and Maharashtra.
The First Schedule was accordingly amended : the entry ‘Bombay’ was
deleted and the names of the two new States of Gujarat and Maharashtra
were inserted. This came into effect on May 1, 1960.

4. The State of Nagaland Act, 1962, created a new State of Nagaland.
The necessary addition was made to the First Schedule. This came into
effect on December 1, 1963.

5. The Constitution (Tenth Amendment) Act, 1961, included the territory
of Dadra and Nagar Haveli (former Portuguese enclaves) in the First
Schedule as the seventh Union Territory. This came into effect on August
11. 1962.

6. Under the Constitution (Twelfth Amendment) Act, 1962, the former
Portuguese enclaves of Goa, Daman, Diu were included in the First Schedule
as the eighth Union Territory, retrospectively with effect from December 20,
1961.

7. The Constitution (Fourteenth Amendment) Act, 1962, included the
former French establishments of Pondicherry, Karikal, Mahe and Yanam as
the ninth Union Territory, with effect from August 16, 1962.

8. The Punjab Reorganization Act, 1966, divided the Punjab State into
three entities — two new States called Punjab and Haryana and a Union
territory called Chandigarh.

Thus there are now seventeen States and ten Union territories, as
follows :

States — Andhra Pradesh; Assam; Bihar; Gujarat; Kerala; Madhya Pradesh;
Madras; Maharashtra; Mysore; Orissa; Punjab; Rajasthan; Uttar Pradesh;
West Bengal; Jammu and Kashmir;*Nagaland; and Haryana.

Union femrories— Delhi; Himachal Pradesh; Manipur; Tripura; The
Andaman and Nicobar Islands; The Laccadive, Minicoy and Amindivi
Islands; Dadra and Nagar Haveli; Goa, Daman and Diu; Pondicherry;
and Chandigarh,

148

FRAMING OF INDIA’S CONSTITUTION

Article 3

„ 1. Under the proviso to article 3 of the CoDstitution as passed by the
Assembly in November, 1949, no Bill for the purpose of forming a new
State, increasing or diminishing the area of any State, or altering the
boundaries or name of any State, could be introduced in either House of
Parliament unless, where the proposal affected a Part A or a Part B State,
the views of the Legislature of the State had been ascertained by the
President with respect both to the proposal to introduce the Bill and its
provisions. It was considered desirable, when such a reference had been
made to a State Legislature, to provide for a time-limit within which its
view would be communicated. The proviso was accordingly amended as
follows by the Constitution (Fifth Amendment) Act, 1953 :

Provided that no Bill for the purpose shall be introduced in either House
of Parliament except on the recommendation of the President and unless,
where the proposal contained in the Bill affects the area, boundaries or
name of any of the States specified in Part A or Part B of the First
Schedule, the Bill has been referred by the President to the Legislature of
that State for expressing its views thereon within such period as may be
specified in the reference or within such further period as the President
may allow and the period so specified or allowed has expired.

The amendment came into force on December 24, 1955.

2. The words “specified in Part A or Part B of the First Schedule” were
deleted from the proviso by the Constitution (Seventh Amendoient) Act,
1956.

3. The Constitution (Eighteenth Amendment) Act, 1966, added an
explanation which made it clear that the word “State” in clauses (a) to (e)
of article 3, but not in the proviso, included a Union Territory. The effect
of this is that Parliament can by law form new Union Territories, increase
or diminish the area of any Union Territory or alter its boundaries or name;
and it is not incumbent on Parliament to consult the Legislature of the
Union Territory concerned before doing so.

CITIZENSHIP

The concept of Indian citizenship did not exist prior to November 26,
1949, when the Constituent Assembly adopted the Constitution of India,
bringing into force at once the provisions relating to citizenship'. As “British^’
India was at that time under the Crown, its people were British subjects
and their national status and rights of citizenship were governed by the
British Nationality Acts passed by the Parliament of the United Kingdom
from time to time. The fundamental principle governing the laws of
British nationality was that every person born within any part of British
territory became at and from birth a British subject. The Indian States
did not form part of British territory, and their subjects were not
“British subjects”. These States had no international personality and under
international law their subjects enjoyed the status of British protected
persons^

The British Nationality and Status of Aliens Act, first enacted in 1914
and subsequently elaborated in 1918, 1922, 1933 and 1943, did not prevent
differential treatment being accorded to different classes of British subjects
as to immigration or otherwise; and local nationality could be conferred
by the authority of the Legislature of the British possession concerned.
Thus, the Immigration into India Act, 1924, as well as its repealing Act,
the Reciprocity Act, 1943, empowered the Government of India to regulate
on the basis of reciprocity the entry and residence of British subjects
domiciled in other British possessions. Local naturalization was regulated
by the Indian Naturalization Act, 1926, which provided for the grant of
naturalization to persons not being subjects of any State in Europe
or America or of any State of which an Indian British subject was prevented
by law from becoming a national by naturalization\ Nevertheless, the basic
concept underlying the 1914 Act was that of a common British nationality
for all subjects of the Crown throughout the Empire and the Commonwealth.

The concept had grown out of and crystallized the common law

^Article 394 of the Constitution which prescribed the date of the commencement
of the Constitution as the twentysixth day of January 1950 provided for the coming
into force of some of the articles at once, Le, on November 26, and articles 5 to 9
were among 'these: , *

^Ciive Fa^rty, British Nationality and Citizenship Laws of the Commonwealth and
! reiand, pp, H4h2.

'^.British", Nationality and Status of Aliens Act, 1914,. sec. 26(1) & (2); The
Reciprocity '■■Act,. '■1943,^. sec. 3; and The Indian Naturalization Act, 1926, sec. 3(lXb).
Also S. -The' '.Working Constitution in India,

150

ERAMING or INDIA’S CONSTITUTION

doctrine of allegiance to the King. Separate nationality statutes — accepting
and usually incorporating the United Kingdom legislation — enacted by the
Dominions of Canada, Australia, New Zealand and South Africa were
referred to as together constituting a common code, alterations in which
could be made only by mutual consultation and agreement. Soon, however,

divergences began to appear between . the laws of one Dominion and those
of another ; and it became clear that a common code was irreconcilable
with the complete legislative independence of the self-governing; members
of the Commonwealth. Thus, even before India became a self-governing
Dominion, the common code was becoming unworkable in practice and
leading to complications in both the domestic and international spheres^
At the British Commonwealth Conference on Nationality and Citizenship
held in February 1947,., the principles of the Canadian Act of 1946 were
accepted for general application throughout the Commonwealth'.

So far as India was concerned, the Government of India Act, 1935,
placed it beyond the competence of the Legislatures in India to make any
law affecting the law of British Nationality'. This position remained
unchanged at the time of independence.

The subject of citizenship was one of the first matters to engage the
attention of the Constituent Assembly. The citizenship provisions took an
exceptionally long time— nearly two years — to reach the stage of finality. A
number of drafts were considered by several committees and sub-committees.
As the Chairman of the Drafting Committee observed later, no other article
in the Draft Constitution except one gave “such a headache” as the provision
on citizenship. “I do not know,” said Ambedkar, “how many drafts were
prepared and how many were destroyed as being inadequate to cover all
cases which it was thought necessary and desirable to cover”h

Of the several bodies that deliberated on the question of citizenship in
the initial stages, the Sub-Committee on Fundamental Rights was the first.
The drafts on fundamental rights submitted to the sub-committee by
K. M. Munshi and B. N. Rau contained provisions relating to citizenship.
These were examined by the sub-committee on March 24, 1947, and it was
decided to adopt B. N. Rau’s draft in the following form ;

Every person born or naturalized in the Union and subject to the jurisdiclioii
thereof shall be a citizen of the Union. Further provisions governing the
accrual, acquisition and termination of Union citizenship may be made by
the law of the Union®.

^Halsbmfs Laws of England, VoL I, 3rd Edn., p. 528.

^O. Hood Phillips, The Constitutional Law of Great Britain and the Commonwealth,
1957, p. 463.

^Section 110,

, 4. DeL, VoL IX, p. 347.

4M,unsM’s Draft article II; Minutes ,of the Sub-Committee on Fundamental
Rights, March 24, 1947. Select Documents II, 4(ii)(b) and II (iii), pp. 74, 116.

CITIZENSHIP

151

The sub-committee incorporated this provision in its draft report.
K, T. Shah commented that the words ■ ‘‘the accrual, acquisition and
termination of Union citizenship” used in the clause would not necessarily
cover the retention of citizenship and might not, therefore, include the case
of. a woman who, originally a citizen of the Union, married a non-citizen
•but desired to retain her citizenship of .birth. Reconsidering the clause on
April 14, the sub-committee decided to omit the references to ‘‘accrual,
acquisition and termination” and, with this change, include the provision
in its report submitted on April 16, to the Advisory Committee
on Fundamental Rights, Minorities and Tribal and Excluded
■.Areas\

The clause came up for discussion before the Advisory Committee on
April 21. The discussion centred mainly round the question whether the
units in the proposed Union should be entitled to provide for separate
citizenship rights. Towards the end of an animated discussion, Alladi
Krishnaswami Ayyar clinched the issue by affirming that while certain
qualifications might be added to citizenship within a particular unit, there
could be only one citizenship for the whole of the Indian Union. Redrafted
Oil a suggestion by C. Rajagopalacharl, the clause was amended by the
committee to read:

Every person born in the Union or naturalized in the Union according to
Its laws and subject to the jurisdiction thereof shall be a citizen
of the Union.

This short and simple definition of citizenship was incorporated in the
Interim Report of the Advisory Committee submitted to the Constituent
Assembly on April 23\

When the citizenship clause, as recommended by the Advisory Committee,
came up for consideration before the Assembly on April 29, Alladi
Krishnas^^^ami Ayyar explained that there were two different theories on
which citizenship laws in various countries were based. In some of the
European countries citizenship was determined by blood and race, regardless
of the place of birth (lex sanguinis) while under the Anglo-American system
citizenship was determined mainly on grounds of birth {lex soli). The

^Draft Report, Annexure I, clause 3. In his explanatory notes, B. N, Ran pointed
out that while the first part of the clause had been adopted from Article XIV, sec. 1
of the U. S. Constitution, the second part was intended to cover the naturalization
laws which might be passed by the Union or which might be adopted by the
Constitution. He added that citizenship or nationality being part of the subject of
foreign affairs, and as such an exclusively yni on subject, there could be no provincial
citizenship as distinct from the citizenship of the Union. Draft Report, Annexure 11,
Select Documents II, 4(iv) and (v)(c), pp. 138, 147-8.

^Sub-Committee Minutes, April 14, 1947, and Report of the Sub-Committee,
Annexure, clause 3. Select Documents 11, 4(vii) and (viii), pp. 163, 171.

^Proceedings, April 21, 1947; and Interim Report of the Advisory Committee,
Annexure, clause 3. Select Documents II, 6(iv) and 7(i), f5p. 217-8.

152

FRAMING OF. INDIANS CONStitUTiON

Assembly had to make up its mind whether to follow the racial principle
or the birth principle. The Advisory Committee had obviously chosen the
latter inasmuch as the main idea underlying the existing clause was that a
person born in India must get Indian citizenship even if his parents were
foreigners. Both Alladi Krislinaswami Ayyar and K. M. Munshi emphasized
that the clause intended merely to lay down the indispensable conditions for
citizenship, as it was difficult to exhaust by enumeration in a Constitution
Act the many exceptional cases that might arise: they could be taken care
of by a separate Nationality Act to be enacted by the Union Parliament.
Vallabhbhai Patel, commending the clause, referred to the struggle against
racial discrimination in South Africa and in some other States and to the
demand for nationality by the Indians settled there on the ground of their
birth. He cautioned the members not to take a narrow view of the subject
and introduce racial phraseology in the Constitution merely for the sake of
covering a few cases which could otherwise be controlled by law. ‘It is
important,” he said, “to remember that the provision about citizenship will
be scrutinized all over the world.”

The clause generally provoked some opposition and several members
including President Rajendra Prasad had misgivings about its appropriateness.
The apprehension was expressed that it was too widely worded and might
confer citizenship on every person born in India, whether his parents were
Indian citizens or not. As a citizen he would be entitled to all the rights
and privileges of citizenship: at the same time, he might maintain the
nationality of his parents and enjoy the privileges of that nationality. Under
the clauses on fundamental rights he might acquire and hold property and
the right of following any trade or profession in the country. All this, it
was felt, would naturally conflict with the interests of the true citizens
of India who had no other nationality. Finally, on a suggestion from
Alladi Krishnaswami Ayyar, it was decided to refer the matter to a small
committee of distinguished jurists for further examination and
adviced

On April 30, the President appointed an ad hoc committee on citizenship
consisting of S. Varadachari, (a former judge of the Federal Court) as
chairman and Bakshi Tek Chand, B. L. Mitter, Alladi Krishnaswaiiii Ayyar,
K. N. Katju, K. M. Munshi and B. R. Ambedkar. Reporting on the
following day, the committee submitted a redrafted clause :

Every person bom in the Union and subject to its jurisdiction ; every person
either of whose parents was, at the time of such person’s birth, a citizen
of the Union ; and every person naturalized in the Union shall be a citizen
: ■ 'of the Union.,,

Further provision regarding the acquisition and termination of Union

^C. A. Deb., VoL III, pp. 399-409. These points were made in a letter from Rajendra
Prasad dated April 30, 1947 (Not printed).

CITIZENSHIP

153

. ' citizenship may be made by the law of the Union.
Recommending the draft for adoption by the Assembly, the committee
observed : '

The inclusion in the clause of children born in the Union even of non-
citizens, provided they are subject to Union jurisdiction, is a well-marked
feature of Anglo-American public law. This principle has been accepted
in the Indian Naturalization Act, 1926. There is some authority for the
view that the children of visiting foreigners are on the same footing as the
children of foreign ambassadors and would as such be regarded as non-
citizens even if born in the Union, because of the qualifying phrase “and
subject to its jurisdiction.” In any event, such cases are likely to be so
few and far between that it is unnecessary in our opinion to make a special
exception to exclude them from citizenship. As regards the possibility of
double nationality, this is a wellknown phenomenon, but it can be provided
against by appropriate provisions in the Union Naturalization Law calling
upon the person concerned to choose one or the other. For this purpose,
the clause makes express provision for supplementary legislation terminating
citizenship'.

When the clause, as redrafted by the ad hoc committee was moved for
consideration in the Assembly on May 2, K. Santhanam proposed an
amendment seeking to provide that persons born or naturalized in India
before the commencement of the Union and subject to its jurisdiction would
be citizens of the Union. The redraft, as proposed by the ad hoc committee,
he pointed out, covered only persons bom after the Union came into being;
it did not cover those who were born earlier and would already be within
the Jurisdiction of the Union at the time it came into existence. Santhanam's
amendment received support from Rajagopalachari, Sidhva and Ambedkar.
But Vallabhbhai Patel, Munshi and Alladi Krishiiaswami Ayyar considered
it unnecessary at that stage to consider the question raised by Santhanam
as it was still uncertain what would be the shape of the Union of India
in the matter of territories and whether any part of India was going to be
separated from the rest. When finality was reached in regard to these
matters, the necessary adjustments between the parts — ^if there were to be
parts—could be considered. Alladi Krishnaswami Ayyar conceded that the
question raised by Santhanam had not been considered by the ad .hoc.
committee and required careful examination. Finally the clause
was held over for further consideration by the Advisory
Committee*.

While formulating, towards the end of May, the memorandum on the
Union Constitution for the use of tfee members of the Union Constitution
Committee,,the Constitutional , Adviser removed the .citizenship 'provisions

'Report of the ad hoc committee. May 1, 1947, Select .Documents p. 678.

A. Deb,, VoL HI, pp. 52,2-8. ' -

154

FRAMING OF INDIA’S CONSTITUTION

frcdni the list of fundamental rigi^ts and placed them in a separate Part-
Part II of the memorandum — ^under the heading “Citizenship.” This Part
contained three clauses. Clause 1 provided for citizenship at the date of
the commencement of the Constitution; every person domiciled in the
territories of the Union and subject to its jurisdiction, who had been ordinarily
resident for not less than five years, or who or either of whose parents
was born in the territories of the Union, would be a citizen of the Union.
Clause 2 provided for citizenship after the commencement of the Constitution :
every person who was born in the territory of the Union and was
subject to its jurisdiction, or who was naturalized in accordance with Union
law, or either of whose parents was at the time of his birth a citizen of
the Union, would be a citizen of India. Clause 3 laid down that further
provisions governing the acquisition and termination of citizenship might be
made by Union law. B. N. Rau explained that clause 1 was largely based
on article 3 of the 1922 Constitution of the Irish Free State, while clauses
2 and 3 followed the provisions suggested by the ad hoc committee on
Citizenship. He suggested that clause 2 would not be absolutely necessary
if the Union Constitution Committee could agree to leave the matter to be
regulated by Union law under clause 3. The suggestion meant in effect
that the Constitution might confine itself to specifying who would
be citizens at the commencement of the Constitution, the rest being left
to Union law\

With the decision to partition India as a result of the British Government’s
announcement of June 3, 1947, a series of consequential changes and
adjustments became necessary, both inside and outside the Constituent
Assembly. A joint sub-committee of the Union and Provincial Constitution
Committees decided on June 8 that the question of citizenship should be
re-examined by the ad hoc committee as an inevitable sequel to the
announcement. Some representations from individuals received by the
Secretariat of the Assembly during the last week of June and suggesting the
formulation of certain provisions in the light of the changed conditions that
would follow the partition of the country were also referred to the ad hoc
committee®.

Among those who had sent such representations, the Government Solicitor,
Dhiren Mitra, stressed the need for considering the important question of
nationality in so far as it had a bearing on a man’s employment in public
service and his status abroad. A member of the Constituent Assemby, and
later also a member of the (Constitution) Drafting Committee, D. P. Khaitan,
suggested that the definition of citizenship should cover the case of a woman

^Memorandum on the Union Constitution, Part II, clauses 1 to 3 and Note. Select
Documents ll, 15(ii), pp. 472-3.

^Minutes, June 8, 1947, Select Documents 11, 20(1), p. 616.

^Notes received from Dhken Mitra, D. P. Khaitan and G. J. Shivdasani, Select
Documents 11, 25(ii), pp. 628-82.

CITIZENSHIP

155

who, on being married to a citizen of India, would automatically become an
Indian citizen. A large number of marriages were likely to take place
between the citizens of India and those of Pakistan, as also between the
citizens of India and those of the Indian States. In the absence of such a
provision, therefore, India would be “full of what would legally be foreign
women”. A member of the Legislative Assembly of Sind, Glianashyam J.
Shivdasani, pleaded for adequate provision being made for people
of the seceding areas who desired to continue their ■ Indian
citizenship.

When the Constitutional Adviser’s memorandum came up before the
Union Constitution Committee on June 30, consideration of the clauses
relating to citizenship was deferred until after the ad hoc committee had
made its recommendationsk In the report submitted to the Assembly on
July 4, the Union Constitution Committee incorporated the citizenship
provisions contained in the memorandum without any change, except that
the word “Union” was replaced by the word “Federation” and explanations
were added for the words “domicile” and “federal law”. The committee
observed that the draft was meant merely as a basis for discussion and was
subject to the decisions of the ad hoc committee. Nevertheless, it recognized
the inappropriateness of inserting a rigid provision about citizenship and
agreed with B. N. Rau’s view that the Constitution should confine itself to
specifying citizenship at the commencement of the Constitution under
clause 1 ; that clause 2 could be omitted; and that the question of citizenship
after the commencement of the Constitution should be left to be regulated
by law under clause 3. In this connection the committee quoted with
approval the views of a Calcutta law journal :

It is not possible to define exhaustively the conditions of nationality, whether
by birth or naturalization, by the Constitution. If certain conditions are
laid down by the Constitution, difficulties may arise regarding the
interpretation of future legislation which may appear to be contrary to or
to depart in any way from them. , . It would, in our opinion, therefore,
be better to specify who would be citizens of the Indian Union at the date
when the Constitution comes into force as in the Constitution of the Irish
Free State and leave the law regarding nationality to be provided for by
legislation by the Indian Union in accordance with the accepted principles
of private international iaw^

Meeting on July 12, the ad hoc committee decided that for being a citizen
at the eommencement of the Constitution it should not be necessary to have

Mvfinutes, June 30, 1947. Select Documents II, 16, pp. 561-2.

^Report of the Union Constitution Committee, memorandum on the Indian
Constitution, Part 11. The views quoted in the report were those of the Cn/cMijfn
Weekly Notes, Voi. LI, No. 27, May 26, 1947. Select Documents II, 18(i) and (iv),
pp. ' 577-8.

FRAMING OF INDIANS CONStitUTlON

156

resided in the Union territory for a period of five years. Clause 1 of the
memorandum was accordingly redrafted'. The redraft came up at a jomt
meeting of the Union and Provincial Constitution Committees on July 18.
Its consideration was postponed, presumably because this redraft was also
found to be inadequate in certain respects and it was referred back to the
ad hoc committee for further scrutiny^

While moving the report of the Union Constitution Committee for
consideration in the Assembly on July 21. Nehru observed that the subject
of citizenship was still under examination by the ad hoc committee. There
was consequently no discussion in the Assembly at that stage on the
citizenship clauses of the report.

In the draft prepared by the Constitutional Adviser in October, 1947,
there was provision, in addition to the incorporation of all the citizenship
clauses as earlier recommended by the ad hoc committee, for the large number
of displaced persons who had come or were still coming to India from
Pakistan as a result of partition. As many as five clauses, viz., clauses 4,
5, 6, 6- A and 7 were devoted to the subject of citizenship. Clause 4 defined
federal law as including “any existing law as in force”. Clause 5 defined
citizenship at the commencement of the Constitution; its first sub-clause
conferred citizenship upon every person who, or either of whose parents, or
any of whose grandparents was born in the territories initially included
within the Federation; the second provided that every person who, at the
commencement of the Constitution, had his domicile in India, would be a
citizen of the Federation. The latter was meant to cover the cases of
persons who or whose parents and grandparents might have been born in
Pakistan and who had been compelled by circumstances beyond their
control to migrate to India. In a proviso, a particularly easy mode of
acquiring domicile in India was provided for displaced persons from Pakistan.
All that a displaced person had to do was to reside in India for a month
and then to make and deposit in a prescribed office a written declaration of
his desire to acquire domicile in India. This was without prejudice to any
other procedure that would be legally available to him. Clause 6 dealt with
the question of citizenship for persons born after the commencement of the
Constitution'; clause 6-A laid down that foreign nationals would be
disqualified for membership of the Federal Parliament or the Legislature of
any unit". This was intended to discourage double citizenship and prevent
divided loyalties. Clause 7 provided for the Federal Parliament making
further provisions for regulating the acquisition and termination of citizenship

t '

^Minutes, July 12, 1941 , Select Documents 11^ 25(iii), pp. 682-3.

“Minutes, July 18, 1947, II, 19, p. 613.

Vol. IV, p. 730.

Cf. British Nationality and Status of Aliens Act, 79M sec. 1(1).

Commonwealth Australia Act, 1900, sec. 44(i}.

CITIZENSHIP

157

and to make the provisions of clauses 5, 6 and 6- A subject to the provisions

of .such federal law\ „ , -

When the Drafting Committee was considering the Constitutional Advisef s
Draft, S. Dutt, a senior - official of the Ministry of External Affairs and
Commonwealth Relations, ' emphatically urged in his letter of December 5,
that “the unfortunate brothers and sisters” who had ' to leave their homes
in Eastern and Western Pakistan should not be refused citizenship simply
because they were born in Pakistan. “The framers of the Constitution”, he
said, “should look into the matter graciously, at the same time cautiously”.
The Drafting Committee gave anxious and prolonged consideration to the
question of devising a suitable draft. Noting that the point raised by Dutt
had already been anticipated by the Constitutional Adviser, the Committee
accepted the basic principles contained in clauses 5 and 7 of his Draft and
decided (i) to omit clauses 4 and 6 — the former defining federal law and the
latter providing for citizenship after the commencement of the Constitution ;
and (ii) to transfer clause 6-A relating to the disqualification of foreign
nationals for membership of the Legislature to the relevant Part dealing
with the Legislature". Clauses 5 and 7 were redrafted and included as articles
5 and 6 in the Draft Constitution prepared by the Drafting Committee. These
read as follows:

5. At the date of commencement of this Constitution —

(a) every person who or either of whose parents or any of whose
grand-parents was born in the territory of India as defined in this
Constitution and who has not made his permanent abode in any foreign
State after the first day of April, 1947 ; and

(b) every person who or either of whose parents or any of whose
grand-parents was born in India as defined in the Government of India
Act, 1935 (as originally enacted), or in Burma, Ceylon or Malaya, and
who has his domicile in the territory of India as defined in this
Constitution ;

shall be a citizen of India, provided that he has not acquired the citizenship
of any foreign State before the date of commencement of this Constitution,
Explanation ' For the purposes of clause (b) of this article, a person shall
be deemed to have his domicile in the territory of India —

(ij if he would have had his domicile in such territory under Part II of
the Indian Succession Act, 1925, had the provisions of that Part been
: -applicable to -him, or

' ^Draft Constitution prepared by the Constitutional Adviser, October, 1947, Part II; ■
and Constitutional Adviser’s notes on claques 5 to 7 of the Draft. 'Select Domments.'''
III,\4(i)\and''''{i!),''pp. 4, ;i97-8.

^Before the February 1948 Draft Constitution was finalized by the Drafting
Committee, citizenship provisions were discussed by it on October 30, 1947 and
January 19 and February 4, 5 and 6, 1948 — see MlnuUs, Select Documents III, 5,
PP. J25,, 406-7, 470, 472,' 474-5, 480-1. ■

158

FRAMING OF INDIA’S CONSTITUTION

(ii) if he has, before the date of commencement of this Constitution,
deposited in the office of the District Magistrate a declaration in writing
of his desire to acquire such domicile and has resided in the territory
of India for at least one month before the date of the declaration.

6. Parliament may, by law, make further provision regarding the acquisition
and termination of citizenship and all other matters relating thereto.

The Drafting Committee made it clear that an easy mode of acquiring
domicile was provided for in order to meet the special requirements of the
large number of displaced persons from Pakistan; and that as a general rule,
it was necessary under the article that in order to be a citizen of the Union
at its inception, a person must have some kind of territorial connection with
the Union, whether by birth or descent or domicile. The committee did not
deem it advisable to entitle to Indian citizenship those persons who, without
any such connection with the territory of India, might be prepared to swear
allegiance to the Union; for if other States were to copy such a provision,
the Union of India might have within it a larger number of persons who.
though born and permanently resident therein, owed allegiance to a foreign
State'.

When the Draft Constitution was published and circulated for eliciting
opinion, a number of comments and suggestions for amendment of draft
articles 5 and 6 were received from members and others. From among the
members, Pattabhi Sitaramayya and others proposed two amendments to
article 5. The first sought to replace the words “permanent abode” in clause
(a) by the word “domicile” and to change the date, “first day of April 1947”
to “fifteenth day of February 1947”. The second proposed the removal of
all restrictions like the depositing a declaration in the office of the District
Magistrate envisaged in clause (ii) of the Explanation, and the entitlement
to Indian domicile of every displaced person from Pakistan who migrated
to India after the first day of April 1947.

Commenting on these amendments, B, N. Rau pointed out that the term
“permanent abode” had been used because the term “domicile” was vague
and a foreign State might give it an artificial definition. The date, April 1,
1947, was chosen as the crucial date because, according to information
available, the exodus from what later became Pakistan did not begin before
that date. Dealing with the suggestion that every displaced person from
Pakistan who migrated to India after April 1947 should automatically be
entitled to Indian citizenship, he also pointed out that this proposal would
allow every temporary migrant the right of citizenship. This would be
unwisel ' ■ ■

, A member of the Madras Legislatife Assembly, K. Bhashyam, proposed

^Draft Constitution of India, February 1948, para 4 of forwarding letter and

articles 5 and 6. Select Documents III, 6, p. 511.

“Comments and Suggestions on the Draft Constitution. Select Documents IV, l(i),
pp. 15-6.

CITIZENSHIP

159 '

that' in^ the matter of citizenship rights. under clause 5(a), there should be a
positive enactmeiit to the effect that a citizen should have either a perinaneiit
abode or the intention to reside permanently in India. ■ The sponsor of the
proposal obviously wanted to impose domiciliary qualification as a condition
precedent to the acquisition of citizenship in every case. As B. N. Rau
pointed out, if such a proposal was accepted in toto, those persons who, or,
either of whose parents, or any of whose grand -parents, were born, in India
and who were staying^ in any country outside India but had not acquired
the citizenship of such country, would be left out\

The West Bengal Legislative Assembly proposed (1) the omission of
reference to the Indian Succession Act in clause (i) of the Explanation and
its substitution by the actual definition of domicile, viz*, ‘fixdd habitation’;
and (2) the replacing of the reference to the District Magistrate in clause (ii)
of the Explanation by a reference to an officer appointed in that behalf by
the provincial government. The purpose of the proposed modification
presumably was that the District Magistrate might not be easily approachable
for depositing the declaration of domicile.

Commenting on these suggestions, B. N. Rau pointed out that the object
of referring to the Indian Succession Act was to apply all the provisions of
Part II of the Act to the determination of the domicile of a person without
reproducing them in extenso. Asi for the second suggestion, he felt that the
object of the amendment would be met if in clause (ii) of the Explanation,
after the words “District Magistrate”, the words “or of such officer as may
be authorized in writing in that behalf by the District Magistrate” were
insertedl

The editor of the Indian Law Review and some members of the Calcutta
Bar criticized the definition of citizenship in draft article 5 as narrow. The
definition, they considered, did not include persons who were born or had
a fixed habitation in Pakistan but had spent their life in India in the pursuit
of their profession, calling or vocation, because domicile as defined in the
Indian Succession Act excluded such persons. Commenting on this criticism
B. N, Rau pointed out that the Drafting Committee was definitely of the
opinion that persons who were born or had a fixed habitation in Pakistan
could be treated as citizens of the Union of India at its inception only if
they had some kind of territorial connection with the Union, If there was
any doubt as to whether such persons had made their fixed habitation in
India and thereby acquired a domicile under the Indian Succession Act, they
could avail themselves of the easy mode of acquiring a domicile under
clause '(ii) of the Explanation by making and depositing in the office of the
District Magistrate a declaration of their desire to acquire such domicile^.

^Comments and Suggestions on the Draft Constitution. Select Domments , W . !(i),
pp. 16-7. ,

. pp. ' 17-8. ,, ■ . . .

: ' pp. 18-20.

160 FRAMING OF INDIA'S CONSTITUTION

Certain comments on draft article 5 raised the point as to how that
provision would accord with the principles of the British Commonwealth
citizenship in the event of India remaining within the Commonwealth.
Replying to the point, B. N. Rau admitted that the citizenship provisions had
been “drafted without any reference to any British Commonwealth law of
citizenship”: article 5 was not intended to be the entire law on Indian
citizenship and further provisions under draft article 6 would have to be
made by the Indian Parliament “as early as possible”'.

Justice Meredith of the Patna High Court commented that draft article 5
left uncertain the position of Europeans in regard to the acquisition of
Indian citizenship. Suggesting the insertion of some provision for
naturalization, he contended that under the existing articles there was no
constitutional protection for non-citizens permanently resident or having
their domicile in the country: citizenship appeared to have been made an
essential qualification for practically every appointment under the Union of
Indian

The All-Burma Indian Congress urged that every Indian resident in Burma
who was an Indian before April 1, 1937, when that State was separated,
should have the unqualified option of choosing the citizenship either of
India or of Pakistan; and that this right should also be extended to those
overseas Indians who were born in what subsequently became Pakistan
territory. The Congress further desired that an easier process of reacquisition
of citizenship might be prescribed for Indians resident in Burma who had
taken Burmese citizenship but later wanted to reacquire Indian citizenshipl

A memorandum on the Draft Constitution submitted by some
representatives of the Indian States pleaded stron^y for a separate
citizenship of a State in addition to federal citizenship. It suggested a
proviso to be added to draft article 6 to preserve the right of the Legislature
of a constituent State to deal with the question of citizenship for the local
purposes of the State^ Disagreeing with this view, Alladi Krishnaswami
Ayyar explained the position :

The States had never a nationality law and it was merely a domicile law.
In foreign countries, in British territories, Indian State subjects came under
the category of British protected persons and the protection was afforded
by reason of the fact that the States had no voice in the conduct of foreign
affairs. Now, since foreign affairs is ceded by all acceding States, they
have to be protected abroad by the Indian Government. Since they have
conceded the right to the Indian Legislature to pass laws extending to
their territory, there is nothing incongruous in there bemg a unified

^Comments and Suggestions on the Draft Constitution. .Bocummts IV,

l(i),p.21.

-Ibid.

pp. 22-3,

^Ibid., p. 222.

CITIZENSHIP

161 ,

citkens'tiip. Moreover any modification in this regard would affect the
chapters relating to fundamental rights which have been passed with the
assent of every one. Hen,ce, this objection should not be considered at alF.

All the comments and suggestions for amendment were carefully
considered, along with B. N. Rau’s notes thereon, by tlie Drafting CoiBmittee.
B. N. Rau observed that there was a lacuna in clause (b) of article 5; it
left out persons who we,re bom in Pondicherry, Goa, Chandranagore or
other foreign territory in India or were born in South Africa, Fiji or other
countries outside India, but were domiciled in the territory of India as
defined in the Constitution. There was no goM reason why such persons
should be less favourably treated than those bom in Pakistan or Burma.
S. Dutt ■ had raised some points in a letter to B. N. Ran in regard to
citizenship rights .for Indians who had migrated to Malaya. B. N. Rau
replied to all these points. The first point was whether those Indians who
had resided for a number of years and cultivated land in Malaya would be
regarded as having made their permanent abode in Malaya. The answer
really turned on their intention; if their intention was always to return to
India ultimately, the courts would probably hold that they had not made
their permanent abode in Malaya.

Of course, intention can only be proved by some overt act ; if in a
particular case, the only facts proved are residence and cultivation for a
long period of time in Malaya and there is no other proof of intention, the
courts may well infer an intention to make Malaya the permanent abode.
The test is always of intention.

Dutfs second point was whether acceptance of Malayan citizenship would
be regarded as acquisition of citizenship of a foreign State. B. N, Rau*s
reply was that an amendment substituting the word ‘"acquired” in article
5(b) by the words “voluntarily acquired” was already being considered; that
would remove all ambiguity in the matter. If a person who was an Indian
citizen by birth under article 5(a) became a citizen of the Malayan Federation
by the automatic operation of Malayan law or became a British subject
under the British nationality law, he would not be considered for the purposes
of article 5(b) to have voluntarily acquired Malayan citizenship or British
nationality. Besides, B. N. Rau said, it was also proposed to exclude
Malaya and similar States from the definition of a “foreign state”.

Lastly, Dutt had asked whether the Government of India would ’ undertake
legislation before the commencement of the Constitution to enable persons
residing' in Malaya to acquire Indian citizenship by declaring their iiitentidD
in writing before India’s representative in Malaya. The intention of , the
citizenship provisions, B. N. Rau obsewed, was clearly that no person should
at the inception of the new Constitution be a citizen of India unless he was

Comments .and Suggestions on the Draft Constitution. Select Documents IV,

l(i), P. 25. ;

162

FRAMING OF INDIA’S CONSTITUTION

connected with the territory of India by birth, descent' or dO'iiiiGile. It was
not the intention that persons unconnected with the territory of India in one
■of these ways should by , merely making a statement before some authority
outside India qualify for citizenship. If a person was not bom in India and
was not born of parents or grandparents born in India, it would be necessary
that he should stay in India for at least a month and make a declaration of
his intention to acquire Indian dO'inicile. B. N. Rau suggested a redraft of
article 5 incorporating the results of- his scrutiny of the various comments
and suggestions that had been received :

At the date of commencement of this Constitution—

(a) every person who or either of whose parents or any of whose grand-
parents was born in the territory of India and who has not made his
permanent abode in any foreign country, after the first day of April
1947 ; and

(b) every person who has his domicile in the territory of India,

shall be a citizen of India, provided that he has not voluntarily acquired
the citizenship of any foreign country.

The Explanation to article 5 with its clauses (i) and (ii), and article 6
were retained without any change. B. N. Rau pointed out incidentally thai
the redraft would also meet the criticism by Meredith, inasmuch as clause (b)
would apply to foreigners who had made their habitation permanently
in India. On the question of acquisition of domicile by displaced persons,
he again clarified the position that a declaration before a magistrate was
not indispensable for acquiring citizenship; it was only one of the modes
of proving acquisition of domicile, merely intended to provide a specially
easy mode for those who wished to avail themselves of it.

The Drafting Committee accepted the redraft proposed by the
Constitutional Adviser. The Special Committee (a body consisting mostly
of certain members of the Union Constitution Committee, tlie Union Powers
Committee and the Provincial Constitution Committee) suggested that the
article should be divided into two parts: one dealing with cases of general
application and the other dealing with persons who had left India with
the intention of acquiring a fixed habitation in other countries or who had
migrated to India from other counries for acquiring such habitation in
India. The recommendations of the special Committee fomid favour with the
Drafting Conimitteeh Accordingly, the October 1948 reprint of the Draft
Constitution contained a fresh redraft of article 5 on these lines'.

The citizenship '' provisions came up for discussion ' in the Assembly on
November 18, 1948, but consideration was deferred as a large number of
amendments had been tabled and was considered desirable to give an

'Select Documents IV, l(i), (ii), (iii), pp. 23-4, 393, 409; See also pp. 532-3.

"Commeots and Suggestions on the Draft Constitution. Select Documents iV,
l(i), p. 25.

CITIZENSHIP

163

opportuaity to the proposers to exchange views with the members of the
Drafting Committee and arrive^ if possible, at a consensus'.

Meanwhile apprehensions had been expressed on behalf of iadians in
Malaya that/if the federal citizenship provisions of the new Malayan
Constitution came into force earlier than the Indian Constitution, under
article 5(b) of the latter, many Indians, resident in Malaya would
automatically be disqualified for Indian citizenshipl But, as S. Dutt later
pointed out in a note on citizenship, these fears were based on the assumption
that Malayan citizenship would be regarded as citizenship of a foreign
State, Actually, so long as India remained in the Commonwealth, there was
no question of Malaya being a foreign State. Persons of Indian origin by
living abroad in a Commonwealth country would acquire the citizenship of
India under article 5(a) even if they had already accepted the citizenship of
their country of residence. Thus, a person resident in Malaya but having
his origin in the territory of the Union of India would acquire Indian
Citizenship even if in the meantime he had become a federal citizen of
Malaya. The difficulty in the case of persons originating in what later
became Pakistan territory and accepting Malayan citizenship could also, if
necessary, be obviated by adding a proviso to article 5(b) to cover such
cases. In a comprehensive note Dutt also examined in detail the general
question of articles 5 and 6 of the Draft Constitution being adequate or
otherwise for meeting the requirements of all persons originating in Indian
territories before August 15, 1947, and living abroad on the date of the
inception of the Constitution but anxious to acquire Indian citizenship.
Dutt pointed out that most of such people would automatically become
Indian citizens under article 5(a), for at least one of their parents or grand-
parents must have been born in India. Regarding Indians in Fiji and
Guyana (former British Guiana) whose connection with India was as
remote as going back to great grand-parents, it was, after discussions
with B. N, Ran, considered inadvisable to have any provision in the
Constitution.

The next and more difficult question concerned persons originating in
territory included in Pakistan but living abroad, who had no iritention of
returning to Pakistan and who wanted to make their permanent homes iii
India— persons, for example, who originated in West Punjab, who were
subsequently living in Burma, Egypt, Indonesia etc., and whose homes in the
West Punjab had been destroyed and whose relations had moved to India.
Under draft clause 5 as it stood, any such person had to return to India,
submit a declaration of his intention to acquire Indian domicile and reside
there for at least a month before th^ date of declaration. This requirement
would have placed these persons in a difficult position. Dutt, who raised this

^C. Dek, VoL VII, pp. 470-1.

^Memorandum by R. Ramani, April 1949. Select Documents IV, 6(ii), pp. 520-5.

164

FRAMING OF INDIA’S" CONSTITUTION

issue, pointed' out -that it would not be lair to compel these thousands of
persons, who bad' no home left in Pakistan, to return to India immediately,
leaving their business concerns behind, merely to qualify for Indian citizen-
. ship. This matter -was taken up, by Prime Minister Nehru with the
Constitutional Adviser and with Ambedkar, the Chairman -of the Drafting
Committee. The latter thought that it -would not be impossible -to- allay
the apprehensions of Indians by making appropriate ' changes in’ the 'Clauses
regarding naturalization- in the Bill on Indian citizenship which was to be
promoted in the - near future. The Ministry of External - Affairs was
apparently : not satisfied with this solution; the" Ministry wanted" special-
provision in the Constitution which would enable this class of Indians to
qualify for citizenship at the commencement of the Constitution'.

Consideration of the citizenship provisions was taken up in the Assembly
on August 10, 1949.* President Rajendra Prasad suggested that in view of
the large number of amendments, ‘about 140, a number of the emanating
from the Drafting Committee, it would be better if the Chairman of the
Drafting Committee moved the articles in the form in which he had finally
framed them. Thereupon Ambedkar moved a consolidated amendment
combining all the amendments proposed by the Drafting Committee. The
consolidated amendment sought to replace articles 5 and 6 of the February
1948 Di‘aft Constitutioh, by six iiew articles, v/z., articles 5, 5-A, 5-AA,
5-B, 5-C and 6.

These new articles Ambedkar explained conferred citizenship of the Union
on five different categories of persons: (1) persons domiciled in India and
born in India—these forming the bulk of the population of the Union of
India; f 2) persons domiciled but not born in India, who resided in India
e.g-, persons who were subjects of French or Portuguese settlements in India
like Chandranagore, Pondicherry, Goa etc., or Iranians who had come from
Persia and resided in India for a long time and undoubtedly had ilia
intention of becoming citizens of India; (3) persons who were resident in
India but who had migrated to Pakistan; (4) persons resident in Pakistan
but who had migrated to India; and (5) persons who or whose parents were
born in India but who were residing outside India.

The provisions proposed were necessarily somewhat complicated since
they had to- coyer a number of classes of persons, and a situation resulting
ffoni a great upheaval in which a large scale exodus of population between
India and 'Pakistan had taken -"place. The -clauses were lucidly explained
by 'Ambedkar. ' 'The 'first category of persons were' those who were domiciled
in India and who or whose- parents were bom in the territo^ry of Tndia.: These
automatically becanie Indian citizens. ^ ^ -

The second' category included ' persons who had resided^^ in ' India, though

^Note by S. Dutt, Additional Secretary, Ministry of External Affairs: also ' w
Dotfs further note, June^ 16, 1949. Select Documents IV, 6(ii) and (iv), pp. 527“32.

CITIZENSHIP

165

they were, not horn, in India. The condition imposed on these persons was,
that they, should have, resided, in India for a period of 'not less than five
years. ■ •„ ■ ' ■ ; , .

,;Tlien there -were,,, two categories of persons, tliose who were resident in
India, and, had migrated to Pakistan, and those who were, resident in Pakistan
and had migrated to India. The latter category waS' divided into two
classes, those wfio had come to India -before July - 19, 1948, and those who
hadcome after that date (on. this date -an. ordinance had -been passed -that
no one could come, in unless he, had- a permit,; and there were three kinds of
permits— temporary, permanent, and those for resettlement). , /Those who
came before July 19, 1948, would automatically become citizens of India,
but those who came later could acquire citizenship only, on following a
procedure. They had to make an application to an officer appointed by the
Government of India and had to be registered by. such officer on an
application so made.

As regards persons who had migrated to Pakistan but had returned to
India, the position was that if a person who had migrated to Pakistan had,
after going there, returned to India on the basis of a permit given to him,
not merely to enter India but also to resettle, such person would become a
citizen of India on the commencement of the Constitution.

The last category of persons provided for in these articles were those
residing abroad but who or whose parents were bom in India. Tliese were
the persons for whom the Ministry of External Affairs had entered a strong
plea. In their case the only limitation proposed was that they should make
an application before the commencement of the Constitution to the Consular
Officer or the Diplomatic Representative of the Government of India in the
country in which they w^ere staying, and get themselves registered as citizens.
This, Ambedkar explained, would be a simple matter.

While commending the new articles for adoption by the Assembly,
Ambedkar explained that their object was not to lay down a permanent or
unalterable law of Indian citizenship, but only to decide for the time being
the question as to who would be citizens on the date of commencement of
the.' Goiistitution. The entire ' matter regarding citizenship , was otherwise
being left to be determined by Parliament: and if there was any category
of,"".peopl€ : who were left out of the provisions of the amendment, power
had./ .been given , to , Parliament to make provision for -them. .Parliament
could not only take: away citizenship from those, entitled to ■ it' , at the,
commencement of the Constitution but also make a new law embodying
new;principles\;' ■/.„.

/,■ .During the' three days’ debate,, pcfhaps the strongest, critic of the new
articles, was' P. ,S. Deshmukh who advised the Assembly to reject them
outright as they ■ had discarded the earlier drafts; .the articles'; moved by

A. Deb., Voi. IX, pp. 343-9.

166

FRAMING OF INDIA’S CONSTITUTION

Ambedkar wO'Uld, he thought, make Indian citizenship “the cheapest on
earth”'. The provision which came under the heaviest fire and evoked keen
controversy was the one under which Muslims could return to India from
Pakistan under a permit and acquire permanent citizenship rights. The
return of Muslims from Pakistan, it was feared, might create complications
in regard to' evacuee property in India, especially when there was no
corresponding provision made by the Pakistan Government for Hindus to
return and settle down in Pakistan. Several members, among them
Thakurdas Bhargava, B. P. Jhunjhunwala and Rohini Kumar Chaudhiiry,
drew attention to the influx of Muslims from East Pakistan into Assam with
the sole object of increasing their population and disturbing the economy
and communal harmony of that Province. Jaspat Roy Kapoor and Thakurdas
Bhargava were emphatic that Indian citizenship should be denied to all
those who had once left the country for Pakistan with the obvious inteiition
of settling down there and becoming Pakistani citizens. Such persons should
be able to acquire Indian citizenship only in accordance with the laws and
rules, applicable to other foreigners. In regard to displaced persons from
Pakistan, on the other hand, Bhargava felt that none of them should have
any trouble in being a citizen of India as of rightl

Intervening in the debate, Nehru pointed out that as a general rule in
regard to the consequences of partition, India accepted without demur or
enquiry the great wave of migration from Pakistan and it therefore became
obligatory on her to accept as citizens all those who came in that wave,
whether they were Hindus or Sikhs or Muslims. A system of enquiry, he
said, had been instituted with regard to people who came to India after July
1948. The Muslims who came from Pakistan with permits for permanent
settlement in India roughly numbered only 2,000 or 3,000. Before permits
were issued each case was gone into thoroughly by the local officials and
the local government concernedl Gopalaswami Ayyangar also endeavoured
to allay the apprehensions of refugees by affirming that migration by itself
would not extinguish their title to property which would continue to be valid
until a final settlement was reached between the Governments of India and
Pakistan. He admitted that while about three thousand Muslims had
secured permits to return to India, the number of non-Muslims who wished
to retura to Pakistan was negligible. Also, he could not say whether the
treatment given on the other side to persons returning from India was in
actual practice the same as that given in India to those returning from
Pakistani , , . .

In his reply to the debate, Ambedkar explained that the provision under
which Muslims could return to India tender a permit and acquire citizenship

tC. /i. ,0e^., VoL IX, pp. 351-6.

"/£»iU/pp. 361-8, 378-86, 389-90 and 413-7.

^IbkL pp. 398-401.

Htm pp. 417-21. . .

CITIZENSHIP

167

rights was based on an undertaking given by the Government of India to
allow people from Pakistan to return and settle down in India. However,
there was nothing to bar the Assembly from bringing in a Bill to prevent
the' Government from continuing the permit system, except that the ' Assembly
would perhaps not be acting rightly or in accordance with the public
interest if it decided to deny citizenship rights to the few people who came
on the assurance of the Government to make their home in India. Answering
the criticism in regard to 'East Bengal Muslims infiltrating into Assam,
Ambedkar pointed out that in regard to those who had entered Assam
after July 19, 1948, whether they were Muslims or others, the grant of
Indian citizenship was not at all an ‘‘automatic business” since only
those who entered Assam before that date were declared to be
citizens.

Efisagreeing with Deshmulch’s criticism that the proposed articles made
India’s citizenship the “cheapest in the world,” Ambedkar said that if the
laws and rules governing the law of citizenship in the various countries of
the world were carefully studied, it would be found that citizenship of India
was no cheaper than that of other countriesk

The Assembly rejected all the other amendments adopting only
Ambedkar’s consolidated amendment containing articles 5, 5-A, 5-AA, 5-B,
5-C and 6k Later, at the revision stage, the proviso to article 5, disqualifying
a person for Indian citizenship if he had voluntarily acquired the citizenship
of a foreign State, was separated and made into an independent article —
present article 9 — and the existing articles 5, 5-A, 5-AA, 5-B, 5-C and 6
v/ere respectively renumbered as 5, 6, 7, 8, 10 and 11. With a few
other modifications of a verbal nature, they w^ere finally incorporated
in the Constitution adopted on November 26. 1949k Of these, articles
5 to 9 came into force on the adoption of the Constitution on November
26, i949k

NOTE ON COMMONWEALTH CITIZENSHIP

'Ihe British Nationality Act, 1948, which came into force on January 1,
1949, repealed all earlier nationality laws and created a new status, that of
“a citizen of the United Kingdom and Colonies” in addition to the status
of “a British subject or a Commonwealth citizen”. A Britisli subject or a
Commonwealth citizen— the two expressions were legally equated— could
under the Act acquire the rights and privileges of a U. K. citizen by the
simple process of registration and without any need for riatiiralization as

VoL IX, pp. 422-4. ■

-Ibid., pp. 425-30.

^Draft Constitutioii as revised by the Drafting Committee, November 3, 1949.
Select Documents IV IS hZ.

:^See p.' 149. . '

168

FRAxMlNG OF INDIANS ' CONSTITUTION

applicable to aliens. A person, so registered became, from 'the date of
registration, a citizen of the U,K/.

Immediately after India decided to become a Republic, the . British
Parliament enacted the India (Consequential Provisions) Act, 1949. The
effect ^ of this measure was that notwithstanding India becoming a Republic,
all previous British statutes which applied to India, including those which
conferred privileges on India or her citizens in the U.K.. continued to be
applicable in a British court ; and India and Indian citizens continued
£0 be entitled to take advantage of a British statute in proceedings before
a British court. In short, Indians retained their citizenship of the
Commonwealthl

Although the Constitution' of India did not make any reference 'to
Commonwealth citizenship, under the Citizenship Act of 1955 every person
who is, a citizen of a Commonwealth country acquires by virtue of that
citizenship the status of a Com,monwealth citizen in India. The Act empowers
the Central Government to make provisions, on the basis of reciprocity,
for the conferment of all or any of the rights of Indian citizenship on the
citizens of any of the specified Commonwealth countries or of the Republic
of Ireland, It also provides for registration as a citizen of India of any
person, of full age and capacity, who is a citizen of a Commonwealth country
or of the Republic of Irelandl

THE CITIZENSHIP ACT, 1955

The Constitution of India only laid down the law in regard to citizenship
at the commencement of the Constitution. It did not provide for the
acquisition and te,rmination of Indian citizenship. Article 11 left it to"
Parliament to regulate the right of citizenship by law.

An Act of Parliament providing for the acquisition and termination of
Indian citizenship was passed in 1955 . The Act consisted of nineteen
sections and three schedules — sections 3 to 7 for acquisition and sections
8 to 10 for termination. Under the Act, a person born in India after
January 26, 1950, would, subject to certain exceptions, be a citizen of India
by birth; and anyone boni outside India after that date would also be a
citizen if liis father was a citizen at the time of birth, but this would be'
subject to certain requirements being fulfilled (sections 3 and 4). Sections
5 and 6 prescribed the conditions under -which a person who was not

' ‘British Naiiomiity Act, 1948.

Commission of India, Fifth Report^ p. 7. While recommending that the large
majority of British statutes applicable to India should be repealed, the Law Commission
felt , that it would be desirable to make a specific provision in the repealing enactment
to 'save the operation of these statutes in so far as they conferred privileges on India
or her citizens.

^The Citizenship Act, 1955, ss. 5, 11 and 12.

CITIZENSHIP

169

already a citizen of India would acquire Indian citizeiisiiip. Section 7 laid
down that if any territory became part of India, the Central Govermneiit
might by order specify the persons who would be citizens by reason of their
connection with that territory. Sections 8 to 10 provided for the termination
of citizenship.

The Act also provided that the citizen, of a Commonwealth country would
have the status of a Commonwealth citizen of India. The Government of
India has reserved to itself the power to make provision on the basis of
reciprocity for the conferment of all or any of the rights of a citizen of
India on the citizen of any Commonwealth country (Sections li and. 12)'.

^For details see The Citizenship Act, 1955 (57 of ' 1955). , Also see' A. N. Smba,
Law ■ of Citizenship and Aliens in hidm, ■ Chapter 'VI. ' '

FUNDAMENTAL RIGHTS

INTRODUCTORY

The inclusion of a set of fundamental rights in India’s Constitution had
its genesis in the forces that operated in the national straggle during British
rale. With the resort by the British executive to such arbitrary acts as
internments and deportations without trial and curbs on the liberty of the
press in the early decades of this century, it became an article of faith
with the leaders of the freedom movement. Some essential rights like
personal freedom, protection of one’s life and limb and of one’s good
name, derived from the common law and the principles of British

iurisprudence. were well accepted and given at least in theory statutory
recognition in India by various British Parliamentary enactments relating
to the Government and the Constitution of Indiah
A vital principle of English law stated by Professor Dicey was:
The one fundamental dogma of English constitutional law is the absolute
legislative sovereignty or despotism of the King in Parliament. But this
dogma is incompatible with the existence of a fundamental compact,
the provisions of which control every authority existing under the
constitution.

In India, some fundamental rights had been conceded by the British

Parliament or the Crown. Attention may be drawn in particular to section
298(1) of the Government of India Act, 1935, under which a subject of
His Majesty could not be debarred from holding any ofSce under the Crown
on grounds only of religion, place of birth, descent, colour or any of them.
Similarly, in the Proclamation of Queen Victoria it was stated:

We declare it to be our royal will and pleasure that none be in anywise

favoured, none molested or disquieted, by reason of their religious faith

or observances; but that all shall alike enjoy the equal and impartial
protection of the law; and we do strictly charge and enjoin all those who
may be in authority under us that they abstain from all interference with

Tor example, section 87 of the Charter Act of 1833 laid down that “no native
of the said territories (/.e., British India). shall by reason only of his religion,
place of birth, descent, colour, or any of them, be disabled from lioiding any place,
office, or employment under the Company”. The substance of this provision was
reproduced in section 96 of the Government of India Act, 1915. The Government
of India Act, 1935 while continuing this guarantee of non-discrimination, afforded
protection in certain other respects also (see sections 275 and 298).

FUNDAMENTAL RIGHTS

171

the religious belief or worship, of any of our subjects on pain of our
highest displeasureh

Nevertheless, in pre-Independence India there was no charter of fundamental
rights of a justiciable nature, and even such safeguards as were contained
in the various statutes could be taken away by the authority making that
statute, whether it was the British Parliament or a legislative authority in
India. Moreover, there were in existence laws which, by the setting up
of special courts or by curtailing a subject’s rights and liberties, did vioience
to the basic principle of fundamental rights.

The position was summed up as follows by B. N. Rau in his report on
Human Rights (December 1947) :

With a few exceptions human rights in India today (December 31, 1947)
are not guaranteed by the Constitution, but embodied in the ordinary
law of the land. Legislative activity in this sphere received a great
fillip at the end of World War I, when the League of Nations and the
International Labour Organization came into being. India’s membership
of these bodies and her participation in their periodical conferences had
an immense educative effect on the Indian public. So too had Mahatma
Gandhi’s powerful and persistent efforts to ameliorate the position of
Harijans. Almost simultaneously came the introduction of responsible
government in the Provinces, at first partially under the Government of
India Act, 1919, and later almost completely under the Act of 1935. The
Legislatures became more and more responsive to public opinion and
this had the effect of facilitating, if not compelling, the translation of
the new ideals into law. The process was further accelerated by
World War II and the establishment, upon its close, of the United
Nations^

As the freedom struggle gathered momentum after the end of the first
world war, clashes with British authorities in India became increasingly
frequent and sharp, and the harshness of the executive in operating its
various repressive measures strengthened the demand for a constitutional
guarantee of fundamental rights. As early as 1895 the Constitution of
India Bill — Mrs. Annie Besant described it as the Home Rule Bill — liad
envisaged for India a constitution guaranteeing to every one of her citizens
freedom of expression, inviolability of one’s house, right to property, equality
before the law and in regard to admission to public offices, light to present
claims, petitions and complaints and right to personal libertyl Following
the publication in 1918 of the Montagu-Chemsford Report, the Indian
National Congress at its special session held in Bombay in August 1918
demanded that the new Government of India Act should include a

^See C. H. Philips, Documents on the History of India and Pakistan, Vol.

IV, p. 11. ,

“Year Book of Human Rights for 1947 (United Nations).

^Clauses 16-21 and 23-4 of the Bill, Select Documents I, 2, p. 7.

172

FRAMING OF INDIA’S CONSTITUTION

‘'declaratioii of the rights of the people of ladia as British citizens”. ■ The
proposed : declaration was . to include, among other things, guarantees
in, regard'. to equality' before the law, protection in respect of liberty, life
and ..property, freedom, of speech .and ..press, and right of association. - In
the -same 'year, at its Delhi- session' in December, the Congress passed' another
rgsolht-iQii^.-demanding' ‘‘the immediate repeal of all laws, regulations ..and
ordinances restricting the free discussion of -political questions and conferring
O'li'.the executive .the power to arrest, detain, intern, extern or imprison,
any British subject in India , outside the processes of ordinary- civil- or
criminal law, and the assim-ilation ' of the law of sedition , , to that of
England”^

Tlie inclusion of a list of fundamental rights in the Constitution
of-' the Irish Free State in 1921 also exe.rcised a decisive influence
on-, the Indian leaders. The Commonwealth' of India Bill finalized
by the National Convention in 1925 embodied a specific ‘‘declaration
of rights” visualizing for every person, in terms practically identical
with the relevant provisions of the Irish Constitution, the following
rights as fundamental :

(a) Liberty of person and security of his dwelling and property ;

(b) freedom of conscience and the free profession and practice of
.religion ; (c) free expression of opinion and the right of assembly
peaceably and without arms and of forming associations or unions ;
(d) free elementary education; (e) use of roads, public places, courts of
justice and the like; (f) equality before the law, irrespective of
considerations of nationality; and (g) equality of the sexes'^

The problem of minorities in India further strengthened the general
argument in favour of the inclusion of fundamental rights in the Indian
Constitution. A resolution passed at the Madras session of the Indian
National Congress in 1927 categorically laid down that the basis
of the future Constitution of India must be a declaration of fundamental
rights^ ' , ■ • '

The 'Nehru Committee appointed by the All-Parties Conference in its
report (1928) incorporated a provision for the enumeration of such rights.
Recommending their adoption as part of the future Constitution of .India,,
the committee referred to the Constitution of the Irish Free State and
observed that Ireland was the only cou.ntr>^ where the conditions obtaiiii'iig
before the treaty approximated broadly to those prevailing in India; and
the'' first concern of the people of Ireland, as of the people of India, . was
to secure fundamental rights hitherto denied to them. 'The Co.mmittee added:

' 'B. Pattabhi Sitaramayya, The History of the Indian National "Congress (1885-

1935), Vol. I, pp. ,153-4; Satya- Pal and Prabodh Chandra, . Congress,

pp. 213-4.

^Select Documents I, 11, p. 44.

^For text of the resoiution, see Nehru Report, p. 19.

FUNDAMENTAL RIGHTS

173

'It 'is obvious 'that' our -first care should be to have our fundameutal' rights
guaranteed in ■ a ■ manner which ^wUL not permit their withdrawal under
any circumstances.’" ' Some of the more important rights recommended -by
the- Nehru Committee may be. summed up as follows:,

(!) Personal liberty and Inviolability of dwelling ' place and property;
(ii) freedom ■ of conscience and of .profession and practice' of religion
^ subject to' public order or morality; (iii) right' of free expression of
opinion and to assemble peaceably and without arms, and to form
associations or unions, subject to public order or morality; (iv) right to
free elementary education without distinction of caste or creed in the
matter of admission into any educational mstitutions, maintained or aided
by the State; (v) equality for all citizens before the law and in civic
rights ; (vi) right of every citizen to writ oi habeas corpus ; (vii) protection
In respect of punishment under ex. post facto laws; (viii) non-

, discrimiaation against any person on grounds of religion, caste or creed
in the matter of public employment, office of power or honour and in
the exercise of any trade or calling; (ix) equality of the right to all
citizens in the matter of access to, and use of, public roads, public
wells and all other places of public resort ; (x) freedom of combination
and association for the maintenance and improvement of labour and
economic conditions ; (xi) the right to keep and bear arms in accordance
with regulations; and (xii) equality of rights to men and women as
' cltizensb

The. Indian Statutory Commission (popularly known as the Simon
Commission) did not support the genera! demand for the enumeration and
guaranteeing of fundamental rights in a Constitution Act on the ground that
abstract declarations of such rights were useless unless there existed ‘'the
will and the means to make them effective”\ The Indian National Congress
at its session at Karachi in March 1931 reiterated its resolve to regard a
written guarantee of fundamental rights as essential in any future
constitutional set-up in India\ The demand for a declaration of fundamental
rights in a constitutional document was again emphasized by several Indian
leaders at' the Round Table Conference' held in London in the early thirties,
A", .memorandum circulated by Gandhi at the second session of the'
conference, inter alia, demanded that the new constitution should "include
a' guarantee to the communities concerned of the protection of their cultures,
languages, scripts, education, profession and practice of religion and religious
endowments” and protect personal laws, and . that the protection of political
and other " rights of minority communities should.be the'eoncern ' of ' /the

''N.ehrw Report : Select Documents I, 16, pp. 59-60.

■- - meport (1930), Vol. TI, para 36.' '■ ' . ' ■ .

PattabM Sitaramayya, The History of the Indian National ' Congress (1885-
1935), VoL I, '.pp.': '463-4.,.".

174

FRAMING OF INDIANS CONSTITUTION

Federal Govemment\ The Joint Select Committee of the British Parliament
on the Government of India Bill of 1934 did not view with favour the
demand for a constitutional guarantee of fundamental rights to British subjects
in India,' Expressing its agreement with the views of the Simon Commission,'
the committee observed,;

. , . there are also strong practical arguments against the proposal
which may be pat in the form of a dilemma : for either the declaration
of rights is of so abstract a nature that it has no legal effect of any kind,
or its legal effect will be to impose an embarrassing restriction on the
powers of the Legislature and to create a grave risk that a large number
of laws may be declared invalid by the courts as being inconsistent with
one or other of the rights so declared . . . There is this further
objection that the States have made it abundantly clear that no declaration
of fundamental rights is to apply in State territories ; and it would be
altogether anomalous if such a declaration had legal force in part only
of the area of the federation’.

The committee conceded that there were some legal principles which could
appropriately be incorporated in the new Constitution. Accordingly, sections
275 and 297 to 300 of the Government of India Act, 1935, conferred certain
rights and forms of protection on British subjects in India. The sections inter
alia provided:

(1) No person shall be disqualified by sex for being appointed to any
civil service of, or civil post under, the Crown in India except a service
or post specified by order made by the Governor-General, Governor or
Secretary of State (section 275),

(2) No British subject domiciled in India shall be ineligible for office
under the Crown in India or be prohibited from acquiring, holding or
disposing of property or carrying on any occupation, trade, business or
profession in British India on grounds only of religion, place of birth,
descent, colour or any of them (section 298),

(3) No person shall be deprived of his property in British India save
by the authority of law (section 299),

But it is worth noting that on the recommendation of the committee certain
vested interests were also safeguarded : among these were grants of land or
tenure of land free of land revenue or subject to remissions of land revenue
like talukdaris, inamdaris and jagirdaris [section 299(3)].

The subject of fundamental rights figured prominently in the deliberations
of the Conciliation Committee (also known as the Sapru Gommittee)
appointed by an All-Parties’ Conference (1944-45). The committee was of

^Another memorandum on the subject was put forward jointly by the representatives
of the minorities. For the texts of the memoranda see the Proceedings of the Federd
Structure Committee and Minorities Committee. Indian Round Table Conference
(Second Session), VoL III, Appendices I and III.

^Report (1934% para 366.

FUNDAMENTAL RIGHTS

175

the opinion, that however inconsistent with British law it might, be, in the
''peculiar circumstances of India” fundamental rights' were necessary not
only as ‘‘assurances and guarantees to the minorities but also for prescribing
a standard of conduct for. the legislatures, governments and the courts”. The
committee felt that it was for the constitution-making body, to settle first the
list of fundamental rights and then to undertake their division into justiciable
and non-justiciable rights and provide suitable .machinery for their
enforcementh

The British Cabinet Mission in 1946 recognized the need for a written
guarantee of fundamental rights in the Constitution of India. In paragraphs
19 and 20 of its statement of May 16, 1946. envisaging a Constituent
Assembly for framing the Constitution of India, it recommended the
setting up of an advisoi 7 committee for reporting inter alia on f imdamental
rightsl

By the Objectives Resolution adopted on January 22, 1947, the Constituent
Assembly solemnly pledged itself to draw up for India’s future governance
a constitution wherein "shall be guaranteed and secured to all the people
of India justice, social, economic and political, equality of status, of
opportunity and before the law : freedom of thought, expression, belief, faith,
worship, vocation, association and action, subject to law and public morality”
and wherein adequate safeguards would be provided for minorities,
backward and tribal areas and depressed and other classes^ Two days after
the adoption of the Resolution, the Assembly elected an Advisory Committee
for reporting on minorities, fundamental rights and on the tribal and
excluded areas^ The Advisory Committee in turn constituted on February
27, 1947, five sub-committees one of which was to deal with fundamental
rights^

The Sub-Committee on Fundamental Rights, at its first meeting on
February 27, 1947, had before it the proposals drafted earlier by the
Constitutional Adviser, B. N. Rau, to divide fundamental rights into two
classes, justiciable and non-justiciable. Although the initial reaction of
several members of the sub-committee appeared to be adverse to B. N
Rau’s proposal, eventually the sub-committee accepted the scheme of
embodying in the Constitution fundamental rights classified into justiciable
and non-justiciable rights^

'^Constitutional Proposals of the Sapni Committee (Bombay, 1945), pp. 256-7.

'“^Select Documents I, 48{i), pp. 214-6.

^Select Documents ll, 1, p. 4.

yl. i>£'^.,'VoL n, pp. '325-7. ■

^The Sub -Committee on Fundamental g^ights consisted of: J. B. Kripaiani, M. R.
Masani, K. T. Shah, Rajkumari Amrit Kaur, Alladi Krishnaswami Ayyar, Sardar
Harman Singh, Maulana Abul Kalam Azad, B. R. Ambedkar, Jairamdas Daiilatram
and K. M. Munshi. The President of Constituent Assembly was authorized to
nominate additional members.

"^See also Chapter on Directive Principles of State Policy.

176

FRAMING OF INDIA’S CONSTiTUTION

■ Ab' important question, ■ that ■ faced' the .sub-committee waS' that, of the
propriety of distributing such rights between' the Provincial, the Group and
the Union Constitutions. Such a possibility had been ' contemplated in
paragraph 20 ,of the Cabinet Mission’s statement. In the early stages of
its deliberations the sub-committee also proceeded on the assumption of this
distribution and adopted certain rights as having reference only to the Union
andxertain others as having reference both to the Union and the constituent
units. However, the volume of opinion against such a distribution grew
both outside and inside, the sub-committee and proved decisive. If they
differed from group to group or from unit to unit or were for that reason
not uniformly enforceable, it was felt, ‘‘the fundamental rights of the citizens
of the Union would have no value”.

Accordingly, while recognizing that certain basic human rights must be
guaranteed to every resident and the rights incidental to citizenship limited
in application to the citizens of the Union, the sub-committee recommended
that all the rights incorporated in the Constitution should be uniformly
“binding upon all authorities, whether of the Union or the . units”. This
was sought to be achieved by providing' by definition in the first clause on
the subject of fundamental rights that unless the context otherwise required,
the expression “the State” included the Legislatures and the Goveraments
of the Union and the units and all local or other authorities within the
territories of the Union, that “the Union” meant the Union of India and
that “the law of the Union” included any law made by the Union Legislature
and any existing Indian law as in force within the Union or any part
thereof. Clause 2 provided:

Ail existing laws or usages in force within the territories of the Union
inconsistent with the rights guaranteed under this Constitution shall
stand abrogated to the extent of such inconsistency, nor shall the
Union or any unit make any law taking away or abridging any
such right*.

Before formulating its list of fundamental rights the sub-committee fully
discussed the various drafts submitted by its members and others; the notes
and memoranda — apart, from those circulated by B. N. Rau^ — that received
particular attention ' were those 'submitted by Alladi Krishnaswami Ayyar,
K. M. Munshi and B. R. Ambedkar. Referring to the ■ chapter on

The ’siiggestion was m'ade by- B. N. Rau and accepted by the sub-committee.

“Sub-Committee on Fundamental Rights: Minutes and Report. Seieci : Documenis.
If, 4 (vii) and (vlii), pp. 138, 163, 171. The annexure to the report contained the
list: of the proposed clauses — clause 1 dealing with definitions, clauses 2 to 32 under
Part I . covering ■ justiciable rights and closes 33 to 45 under Fart il covering
non-justiciable rights. . ,

v^Glause 2 was .based on article 1(4)' in Munshi’^s draft Seleci Documeim Ih 4(iiX
p. 73.' . . , •

'^Select Documents If, 2, pp. 21-36.

Hbid., pp. 67-114.

FUNDAMENTAL RIGHTS

177

fundamental rights in his draft, Ambedkar observed that it required no
justification in so far as the necessity for fundamental rights was recognized
in all constitutions — old and new. The rights incorporated in his draft, he
pointed out, were borrowed particularly from the constitutions of countries
where the conditions were more or less analogous to those existing in
India".

The draft report of the sub-committee completed on April 3, 1947, was
circulated to its members with the explanatory notes on the various clauses
prepared by B. N. Rau.

The clauses contained in the draft report were thereafter discussed in the
sub-committee in the light of the comments offered by the members and
the final report was submitted to the Chairman of the Advisory Committee
on April 16, 1947. Three days later the Sub-Committee on Minorities
examined the draft clauses prepared by the Fundamental Rights
Sub-Committee and reported on the subject of such rights from the point of
view of the minoritiesl The Advisory Committee deliberated on the
recommendations made by the two sub-committees and accepted tbe
recommendations for (i) classification of rights into justiciable and
non-justiciable rights, (ii) certain rights being guaranteed to all persons and
certain others only to citizens and (iii) all such rights being made uniformly
applicable to the Union and the units. The committee also accepted the
drafts of clauses 1 and 2 — the former providing for the definition of “the
State”, “the Union” and “the law of the Union” and the latter for laws
or usages inconsistent with the fundamental rights being void — in the form
recommended by the sub-committee. In clause 2, however, the words
“notifications, regulations, customs” were added between the words “existing
Jaws” and “or usages” and the word “Constitution” was replaced by the
words “this part of the Constitution”. The Advisory Committee incorporated
these recommendations in its Interim Report to the Constituent Assembly
submitted on April 23, 1947. The interim report dealt only with justiciable
rights i.e., fundamental rights strictly so-called. Later, on August 25, 1947.
the Advisory Co m mittee submitted a supplementary report mainly dealing
with non-justiciable rights i.e., the Directive Principles! of State Policy or
the “Fundamental Principles of Governance”"'.

The Advisory Committee’s recommendations regarding justiciable
fundamental rights were discussed by the Constituent Assembly at its
meetings held in April, May and August 1947 and adopted with certain
modifications; it was made clear that in the light of the decisions taken by
the Assembly on principles, the necessary provisions would be drafted and
included in the draft Constitution, which would again be placed before the

^Select Documents II, 2, p. 97.

"See Interim Report of the Sub-Committee on Minorities, April 19, 1947. Select
Documents ll, 5, pp. 207-9.

^For the texts of the reports Select Documents II, 7^ pp. 294-9, 304-6,

178

FRAMING OF INDIA’S CONSTITUTION

Assembly for its consideration*. The various stages through which the
clauses on fundamental rights passed thereafter were similar to those in
regard to other parts of the Constitution. First, the Constitutional Adviser
prepared a Draft embodying the decisions of the Constituent Assembly. This
Draft was considered exhaustively and in detail by the Drafting Committee,
which prepared a revised Draft and published it in February 1948. The
revised Draft was then widely circulated. The comments and suggestions
received from all quarters were again considered by the Drafting Committee
and in the light of these the committee proposed certain amendments.

Discussions in the Constituent Assembly of the draft provisions took place
in November and December, 1948 and August, September and October 1949.
During these meetings the Assembly considered the various suggestions for
amendment made on behalf of the Drafting Committee as well as those
proposed by individual members of the Assembly. The provisions as passed
by the Assembly were again scrutinized by the Drafting Committee and
incorporated with drafting changes wherever necessary in the revised Draft
Constitution. This revised Draft was again placed before the Assembly
at its final session held in November 1949.

Clauses 1 and 2. as reported by the Advisory Committee, were considered
and adopted by the Constituent Assembly on April 29, 1947^ the only
substantial change made therein by the Assembly being an addition at the
end of clause 2 to the effect that no fundamental right could be taken away
or abridged “except by an amendment of the Constitution”\ Although even
thereafter the two clauses underwent some further revision and redrafting
at the hands of the Constitutional Adviser and the Drafting Committee, the
alterations were mainly verbal.

The principles and the substance of the clauses remained the same through
all the stages. In the Draft Constitution‘ prepared by the Drafting
Committee and published in February 1948 the committee included a proviso
to the effect that while the State was debarred from making any law which
took away or abridged any of the fundamental rights, this would not prevent
the “State from making any law for the removal of any inequality, disparity
or discrimination arising out of any existing law”. The committee explained
that this proviso had been added in order to enable the State to make laws
removing existing discrimination; such laws would necessarily be
discriminatory in a sense because they would operate against those who
hitherto had enjoyed an undue privilege and the committee thought that laws
of this character should not be prohibited. These provisions were discu^ed
in the Constituent Assembly on November 25, 26 and 29, 1948. These

A, Deb,, Yol III, pp. 379-421,, 431-57, 465-530, • and' Vol. V, pp. 361-402'

nbid„ pp. 391-9.

®Tlie ameiidment was ' 'moved by K. Santhanam and accepted by ■ Vallabtibbai
Patel,

III, 6, pp. 520-1; article 8(2), proviso,

FUNDAMENTAL RIGHTS

179

discussions did not reveal any important difference of opinion. On an
amendment moved by L. K. Maitra, the proviso mentioned above was
deleted on November 29. Otherwise the articles were adopted by the
Assembly and incorporated as articles 12 and 13 in substantially the same
form in which they now stand part of the Constitution’.

After discussing the subject of fundamental rights — described by Ambedkar
as “the most criticized part” of the Constitution — ^for as many as thirty-eight
days— Jleven days in the sub-committee, two in the Advisory Committee and
twenty-five in the Constituent Assembly — the Assembly ultimately adopted
the comprehensive and impressive array of fundamental rights spread over
twenty-two articles and divided broadly into seven categories of rights viz.,
(i) right to equality, (ii) right to freedom, (iii) right against exploitation,
(iv) right to freedom of religion, (v) cultural and educational rights, (vi)
right to property and (vii) right to constitutional remedies.

RIGHT TO EQUALITY
Articles 14-18

Equality before law {Article 14 )

The principle of guaranteeing to every person equality before the law
and the equal protection of the laws was first included in the drafts submitted
to the Sub-Committee on Fundamental Rights by Munshi and Ambedkar®.
After considering the drafts for two days — March 24 and 29, 1947 — the
sub-committee adopted Munshi’s draft modified as follows :

All persons within the Union shall be equal before the law.

No person shall be denied the equal protection of the laws within the
territories of the Union.

There shall be no discrimination against any person on grounds of
religion, race, caste, language or sexl

The sub-committee also approved the addition of a specific provision
from Ambedkar’s draft laying down that any existing enactment, regulation,
judgment, order, custom, or interpretation of law by which any penalty,
disadvantage or disability was imposed upon or any discrimination made
against any citizen would cease to have effect’. The sub-committee’s
decision was that all persons in India (not merely citizens) should be equal
before the law. The clause need not, the sub-committee felt, contain any
definition of the expression “equal before the law” and left this expression
to be interpreted by the courts in the light of precedents.

IC. A. Deb., VoL VII, pp. 607-12, 640-2, 644-6.

^Miinshi’s draft, article III(l) and (10); Ambedkar’s draft, article II(1)(3). Select
Documents II, 4(ii), pp. 74-5, 86.

'^Minutes, March 24, 1947. Select Documents II, 4(iii), pp. 116-8,

March 29, 1947, p. 132, , " ■ ^ ^

FRAMING OF. INDIA’S CONSTITUTION

.. The draft report of the sub-committee contained a somewhat eomprehensive
provision in clause 5. The main clause read :

All persons within the Union shall be equal before the law. No person
shall be denied the equal protection of the laws within the territories
of the Union. There shall be no discrimination against any person on
grounds of religion, race, caste, language or sex.

Besides, the clause also provided for (i) prohibition of discrimination
against any person on any of the above grounds particularly in regard to
the use of public wells, tanks, roads, schools and places of public resort ;
(ii) equality of opportunity for all citizens in the matter of public employment
or in the exercise or carrying on of any occupation, trade, business or
profession : and for prohibition of discrimination against any citizen in the
matter of appointment to public office or of acquiring, holding or disposing
of property or of carrying on any occupation, trade, business or profession
within the union. The clause also declared that all-pre-existing discrimina-
tory laws, regulations, etc., would cease to have effect with the commencement
of the Constitution'. In an explanatory note^ B. N. Rau pointed out that
the first part of the main clause — equality before the law — was adapted
from the Weimar Constitution^ but widened so as to be applicable to
all persons and not merely to citizens; and that the second part — equal
protection of the laws—was based on the Fourteenth Amendment of the
U. S. Constitution^

In his note on the draft report, Alladi Krishnaswami Ayyar observed that
the clause as drafted might be open to the construction that no discrimination
of any sort could be made between a citizen and a non-citizen even in
matters like the exercise of trade, calling or profession. All that the
sub-committee had intended, he said, was that in such matters as trials before
courts of law and the exercise of normal human rights there should be no
distinction between man and man, the feeling being that in India one should
take a broader view in this regard and not restrict all fundamental rights
to citizens only, as was done in some European Constitutions'. In a

^Draft Report, Annexure, Clause 5. Select Documents II, 4(iv), pp. 138-9.

2/^/d, II, 4(v)(c), p. 148.

^Article 109, para. 1 of the Weimar Constitution provided: “Ail Germans are
equal before the law.”

^The Fourteenth Amendment, Section 1, of the U.S. Constitution inter alia
provides: “No State shall... deny to any person within its jurisdiction the equal
protection of the laws.”

^The constitutions of several European States which guaranteed legal equality
restricted it to citizens only: for example Czechoslovak Constitution [article
128 (1)], Weimar Constitution (article 109 ), Yugoslav Constitution (article 4), Danzig
Constitution (article 73), Irish Constitution [article 40(1)] and USSR Constitution
(article 123). See Comments on the Draft Report of the Sub-Committee on
Fundamental Rights, note by Alladi Krishnaswami Ayyar, April 14, 1947. .Select
Documents II, 4(v)(g), p. 158.

FUNDAMENTAL RIGHTS

i8i

subsequent note he suggested the deletion of the first part of the main clause
and the formulation of a clause confined tO' the ^'eqiial protectiofi of laws®^'
in such a way as to bring it in line with the Fourteenth Amendment of the
U. S. Constitution and to separate it from the non-discrimination clause\
The sub-committee, accepting this view, decided to transfer the first sentence
of the clause dealing with ‘'equality before the law” to the section on
lion-justiciable rights, the rest being redrafted and transferred from the “right
to equality” section to the “right to freedom” section, to become clause 12
in the report submitted to the Advisory Committee on April 16, 19471 The
clause read as follows :

No person shall be deprived of his life, liberty or property without due
process of law nor shall any person be denied the equal treatment of the
laws within the territories of the Union :

Provided that nothing herein contained shall prevent the Union
Legislature from legislating in respect of foreigners^

On April 20, 1947, Alladi Krishnaswami Ayyar submitted another note
wherein he justified the omission of the phrase “equality before the law”
and said that transforming the British common law maxim' of “equality before
the law” into a constitutional guarantee would be beset with difficulties in
so far as the State might have to distinguish between adults and infants,
between men and women and above all between citizens and non-citizens'.

The Advisory Committee after some discussion" adopted the clause® with
the omission of the words “or property” since it would be preferable to deal
with property separately. Wlien the clause came up for consideration
before the Constituent Assembly on April 30, 1947, the Assembly adopted
without any discussion two amendments moved by Munshi, one replacing
the words “the equal treatment of the laws” by the words “equality before
the law” and the other deleting the proviso attached to the clause'.

The Constitutional Adviser’s draft of the Constitution reproduced the
clause as so amended'. The Drafting Committee was of the opinion that
the phrase “equal protection of the laws” should also be restored and inserted

^Select Documents II, 4(v)(g), p. 160.

“Minutes of the sub-committee, April 14 and 15, 1947. Select Documents II, 4(vii),
pp. 164, 167.

^Report of the sub-committee, Annexure, clause 12. Select Documents II, 4(viii),
p. 173.

^Select Documents II, 6(ii), p. 212.

®The discussion in the Advisory Committee centred round the words “due process
of law” and the word “property”. The latter was omitted. See Advisory Committee
Proceedings, April 21, 1947. Select Documents II, 6(iv), p. 248. Also see under Article
31— Right to property,

^Interim Report of the Advisory Committee, Annexure, clause 9. Select
Documents 11, p. 291,

X. A , Deb,, Yol, HI, p, 451,

^Select Documents HI, l(i), clause 16, p. 9.

182

framing OF India's constitution

after' the phrase '"'equality before the law” as in section 1 of the Fourteenth
Amendment of the U.S. Constitution. ■ The committee also gave its reason
for qualifying the word "liberty” by the word "personal”;, otherwise it
might be construed so widely as to include the freedoms dealt with in
article 13. Draft article 15 therefore read :

No person shall be deprived of his life or personal liberty except
according to procedure established by law, nor shall any person be denied
equality before the law or the equal protection of the law within the
territory of India^

When, at the stage of clause-by-clause consideration of the Draft
Constitution the Assembly discussed draft article 15", there was no debate
on the second part of the article dealing with equality before the law and
the equal protection of the laws and the debate in the Assembly was entirely
devoted to the first parf . The draft article as proposed by the committee
was accepted by the Assembly without any changed At the revision stage
the committee split this article into two separate provisions, and in the
Constitution as finally adopted, article 14 in the section relating to right to
equality provides :

The State shall not deny to any person equality before the law or the
equal protection of the laws within the territory of India.

Article 21 in the section relating to right to freedom provides :

No person shall be deprived of his life or personal liberty except
according to procedure established by law^

Prohibition of discrimination {Article 15)

The fundamental right guaranteeing that there would be no discrimination
against any one on grounds of religion, race, colour, caste or sex, was
embodied in the drafts submitted by Munshi and Ambedkar. According
to Munshf s draft :

All persons irrespective of religion, race, colour, caste, language or sex are
equal before the law and are entitled to the same rights and are subject to
the same duties®.

# $

^Draft Constitution prepared by the Drafting Committee (Feb. 1948), ariicie 15
and the footnote thereto. Also see Minutes of the Drafting Committee, October
31, 1947. Select Documents III, 6 and 5, pp. 523, 329.

VoL VII, pp. 797-8, 842-5r, 859, 999-1001.

^See under Article 21.

"Draft Constitution as revised by the Drafting Committee, November 1949.
Documents IV, 18, pp. 754, 756.

"Art. III(l). Select Documents 11, 4(ii)(b), pp. 74-5.

FUNDAMENTAL RIGHTS

183

Women citizens are the equal of "men citizens in all spheres of political,
economic, social and cultural life and are entitled to the same civil rights
and are subject to the same civil duties unless where exception is made
ill such rights or duties by the law- of the Union on account of sex\

Ail persons shall have the right to the enjoyment of equal facilities in
public places subject only to such laws as impose limitations on all
persons, irrespective of religion, race, colour, caste or language^
Ambedkar expressed the same principle in his draft:

Whoever denies to any person, except for reasons by law applicable to
persons of all classes and regardless of their social status, the full
enjoyment of any of the accommodations, advantages, facilities, privileges
of inns, educational institutions, roads, paths, streets, tanks, wells, and
other watering places, public conveyances on land, air or water, theatres
or other places of public amusement, resort or convenience, where they
are dedicated to or maintained or licensed for the use of the public, shall
be guilty of an offence^

All citizens shall have equal access to all institutions, conveniences and
amenities maintained by or for the public^

In the explanatory notes appended to his draft, Ambedkar observed that
discrimination was a menace to be guarded against if the fundamental rights
were to be real In a country like India, he said, where it was possible
for discrimination to be practised on a vast scale and in a relentless manner,
fundamental rights could have no meaning unless provision was made for
protection against discrimination on the ground of race or creed or social
status^

After discussing" the alternative drafts, the Sub-Committee on Fundamental
Rights formulated a non-discrimination provision as part of clause 5 — the
legal equality clause — in its draft report. The provision read :

(1) All persons within the Union shall be equal before the law. No
person shall be denied the equal protection of the laws within the
territories of the Union. There shall be no discrimination against any
person on grounds of religion, race, caste, language or sex.

In particular —

(a) there shall be no discrimination against any person on any of the
grounds aforesaid in regard to the use of wells, tanks, roads, schools and

^Art. ni(3). Domments 11, 4(ii)(;b), pp. 74-5.

mi, article III (4)(b).

^Art. II(I) (4). Select Documents ll, 4(ii)(d), p. 86.

Hbid,, article 11 (I) 5, p. 86,

Appendix I, Explanatory Notes, Note on art. 11(11) (3), pp. 98-9.

^See Minutes, March 24 and 29, 1947. Select Documents ll, 4(ii), pp. 117, 131.

184

FRAMING OF INDIANS CONSTITUTION

places of public resort maintained wholly or partly out of public funds
or dedicated to the use of the general public*.

In his explanatory note, B. N. Ran mentioned that the above provision,
for the most part, followed the drafts in the Nehru Report (1928) and the
Congress Declaration of 1933. He pointed out, however, that the clause
as drafted would prejudicially affect the institution of separate schools,
hospitals, etc. for womenl Commenting on the draft, Alladi Krishnaswami
Ayyar suggested inter alia that the provision forbidding discrimination might
be made an independent clause and the word “language” omitted. He
considered the omission of the word “language” to be all the more necessary
because the grounds referred to were not designed to disqualify a citizen from
holding a public appointment. The Sub-Committee on Fundamental Rights,
accepting his suggestion, incorporated in its report to the Advisory Committee
the non-discrimination provision as an independent clause. The text remained
unchanged except that the word “person” in the first part was substituted
by the word “citizen”".

The Minorities Sub-Committee, after considering the clause as proposed
by the Fundamental Rights Sub-Committee, recommended (1) that there
should be an addition made in the clause providing against discrimination
on the ground of religion, race, caste, language or sex in trading
establishments, hotels and restaurants; (2) that schools should be omitted
from the purview of the clause as drafted by the Fundamental Rights
Sub-Committee and treated separately; and (3) the second sentence of the
clause should be redrafted as a separate clause as follows :

There shall be no discrimination against any person on any ground of
religion, race or caste in regard to the use of wells, tanks, roads and
places of public resort maintained wholly or partly out of the public
funds or dedicated to use of the general public^

The Advisory Committee discussed the recommendations of the two
sub-committees on April 21 and 22, 1947. These discussions showed that the
drafting of a clause which would prevent discrimination and at the same
time would serve practical social ends was somewhat complicated. This
was particularly relevant where the question of discrimination by reason of
language or sex was involved. As Munshi pointed out, a difficulty first arose

Draft report, Annexure, clause 5. Select Documents II, 4(iv), p. 138.

^Select Documents II, 4(v)(c), p. 148. r

^Select Documents llj 4(v)(g), p. 160. Note, April 15, 1947.

Mnutes, April 14-15, 1947 and Report, Annexure, clause 4, Select'Documents II ,
4(vii) and (viii), pp. 164, 167, 171-2.

Tnterim Report of the Sub-Committee on Minorities, Annexure. Select
Documents ll, 5(ii), p. 208.

FUNDAMENTAL RIGHTS

!85

about language becausc^ it was found ■ that there were a number of
'‘denominatioiiar’ schools for which provision had to be made for the grant
of aid from the State. The general clause forbidding discrimination in
State-aided schools would prevent the continuance of aid to such schools.
Therefore, schools were removed from the scope of the clause and a separate
provision was made for them.

Similarly, when the Minorities Sub-Committee began to examine in detail
the question of prohibition of discrimination at places of public resort, tanks,
wells, etc., it realized that it might he necessary for the law to permit separate
provision being made for women and children : likewise in public employment
it was found necessary that reservation might have to be made for minorities.
In short, as Munshi said, ‘'the first sweeping generalization is practically
inapplicable to the whole clause”. He suggested that this group of
amendments should be examined by a small sub-committee or by the whole
committee with these considerations in mind. The members of the committee
were, however, generally of the opinion that while this difficulty undoubtedly
existed, the basic principle that there should be no discrimination should
be embodied in the chapter on fundamental rights. A sub-committee
consisting of Munshi, Rajagopalachari, Panikkar and Amfaedkar was
requested to go into this matter and to redraft the clause. This
sub-committee made a general provision that “the State shall make no
discrimination against any citizen on grounds of religion, race, caste or
sex”. But in regard to access to trading establishments, public restaurants
and hotels and the use of weUs, tanks and places of public resort,
discrimination was prohibited only on the ground of religion, race or caste
and not on the ground of sex. Several members, particularly Rajkumari
Amrit Kaur, opposed this on the ground that it went against the basic
principle of social equality. What was required was a general statement of
principle pro-hibiting discrimination and at the same time a clause to- enable
the provision of separate amenities exclusively for women and children.
With this object in view the committee redrafted the clause as follows:

(1) The State shall make no discrimination against any citizen on grounds
of religion, race, caste or sex.

(2) There shall be no discrimination against any citizen on any ground of
religion, race, caste or sex in regard to —

(a) access to trading establishments including public restaurants and hotels;

(b) the use of wells, tanks, roads and places of public resort maintained
wholly or partly out of public funds or dedicated to the use of the
general public :

Provided that nothing contained •in this clause shall prevent separate
provision being made for women and cbildrenh

^Advisory Committee Proceedings, April 21-22, 1947; and Interim Report of the
Advisory Committee, Annexure. Select Documents H, 6(iv) and 7(i), pp. 221, 253,
254-5, 296. , . .

186

FRAMING OF INDIA’S CONSTITUTION

Ths clause came up for consideration before the Constituent Assembly
on April 29, 1947. Three amendments moved by Munshi and accepted by
Vallabhbhai Patel, the mover of the clause, were adopted by the Assembly.
They provided : (i) for the substitution of the words “not discriminate” for
the words “make no discrimination” in sub-clause (1); (ii) for the addition
of the words “and places of public entertainment” after the word “hotels”
in sub-clause (2) (a); and (iii) for the substitution of the words “State funds”
for the words “public funds”. The first was merely of a verbal nature. The
second was meant to meet the doubt raised by some regarding places of
entertainment being covered by the expression “trading establishments”. The
third amendment was necessary, as otherwise “public funds” could be
construed as including even funds raised for specific purposes by public
subscription'.

Several other amendments were also moved. P. S. Deshmukh considered
that it would be “improper to burden the clause v/ith a detailed list of places
which should be accessible to all”; it would be sufficient merely to provide
“that the State shall not make nor permit any discrimination against any
citizen, on mere grounds of religion, race, caste, or sex”. Somnath Lahiri
sought the addition of the words “political creed” after the words “grounds
of” in sub-clause (1) and the word “creed” after the word “caste” in
sub-clause (2). H. V. Kamath disagreed with Lahiri’s suggestion regarding
“political creed” as he felt “that times may arise when we may have to
discriminate against persons who hold a creed which seeks to subvert the
State by violence or similar objectionable methods”. However, Kamath
favoured the addition of the words “colour, creed” after the word “caste” in
sub-clauses (1) and (2). “Creed”, he said, had a connotation different from
that of “political creed” and “religion”. Rohini Kumar Chaudhury suggested
that the words “or dress worn by any nationality” be added in sub-clause (2)
after the word “sex”. He referred to European-owned or European-managed
hotels in India which had hitherto disallowed entry to people dressed in
Indian style and thought that if his amendment was not accepted, in
independent India as “a reprisal or in revenge” people in European dress
might not be allowed to enter certain hotels.

Rejecting all the amendments, except those moved by Munshi and already
accepted by him, Vallabhbhai Patel observed that it was “an absurd idea to
provide for non-discrimination as regards a political creed”. 'Ihere might
be some political creeds actually “deserving of suppression altogether”.
Regarding “colour”, he said that there were “different kinds of colours among
Indians themselves”. Allaying the apprehension in regard to dress, Patel
pointed out that discrimination on grounds of dress was already a thing
of the past and also that “such things as dress” could “not be put in the
fundamental rights”. The Assembly adopted the clause as amended by

^C. A. Deb: Vol. Ill, pp. 410-1.

FUNDAMENTAL RIGHTS

187

Munshi’s amendments, all other amendments being negatived^-.

Subsequently the clause was further modified by the Constitutional Adviser
and appeared as clause 1 1' in the Draft Constitution of October 1947 :

11. (1) The State shall not discriminate against any citizen on grounds
only of religion, race, caste, sex or any of them.

Ill particular, ' no citizen shall '' on- grounds only of religion, race, caste,
sex or any of them, be subject to any disability, liability, restriction or
condition with regard to

(a) access to shops, public restaurants, hotels and places of public
entertainment, or ,

(b) the use of wells, tanks, roads and places of public resort maintained
wholly or partly out of the revenues of the State or dedicated to the
use of the general public.

(2) Nothing in this section shall prevent the State from making any
special provisions for women and childrens
Later, during his discussions in Washington with Justice Frankfurter of
the United States Supreme Court, the Constitutional Adviser found support
for the exception in clause (2) above; Justice Frankfurter emphasized that
legal provision might occasionally have to be made for v/omen, e.g., to
prohibit employment for a certain period before and after child-birthl
The Drafting Committee considered the clause on October 30, 1947,
accepted it without any change, and incorporated it in the Draft Constitution
as article 9. When the Draft Constitution was circulated for eliciting opinion,
a number of amendments to article 9 were proposed by members of the
Assembly and others. Some of the more important ones suggested by
members of the Assembly are dealt with below.

The first amendment, sponsored by the Drafting Committee, proposed the
substitution of the words “State funds” for the words “revenues of the State”
in clause (1) (b). The Constitutionar Adviser favoured the amendment since
the words “revenues”, he said, could hardly be used in relation to the funds
of local or other authorities which also were, by definition, included in the
expression “the State”.

Pattabhi Sitaramayya and others proposed the deletion of the word “only’'
wherever it occurred in the draft article. B. N. Rau gave cogent reasons
in favour of the retention of the word. If, for example, he said, India decided
to discriminate against South African nationals in India in retaliation against
South Africa’s policy of racial discrimination towards Indians, it would be
on grounds of race but not only of race and would, therefore, be permissible
if the word "'only” was retained but not otherwise.

^C. Ded., VoL pp. 411-8.

.'■■^Select Documents III, l(i), pp. 7-8. The italicized portions represent the
alterations /additions made by the Constitutional Adviser in the text as approved
by the Assembly earlier.

®Note on discussions with Justice Frankfurter (Not published).

188

FRAMING OF INDIA’S CONSTITUTION

R. K. Sidhva wanted an explanation to be added to clause (1) of the draft
article clarifying the meaning of the word "‘public”; he feared that the word
might be construed in the restricted meaning as in section 12 of the Indian
Penal Code (the word “public” is defined as including any class of the
public or any community). Rau pointed out that “public” meant “all classes
of the public” and that in the absence of any definition in the article itself
the word would have its ordinary dictionary meaning.

Tajamul Husain suggested that public places of worship, Dharamshalas
and Musafirkhanas (public buildings intended for the temporary stay of
travellers) should be specifically mentioned in clause (1) (a). Rau explained
that the reference to “public places of worship” could not be included in the
clause, unless the word “public” had a restricted meaning, namely, a section
of the public for obviously it would be open to objection to throw open Hindu
temples of a public character to Muslims or Christians and Muslim mosques
of a public character to non-Muslims. Rights in respect of access to such
places, Rau observed, had been dealt with in article 19 of the Draft
Constitution. “Place of public resort”, he felt, covered Dharamshalas and
other similar amenities.

By another amendment Tajamul Husain sought the deletion of clause (2)
of the draft article. Rau remarked that the clause needed to be retained as
obviously some special provisions in regard to the employment ot women
and children in factories, mines, etc. would be necessary.

Mrs. Purnima Banerji proposed the addition of “schools and educational
institutions” in clause (1) (b). Rau considered that this was not necessary
since the question of discrimination in regard to admission into educational
institutions had been dealt with in another article (article 23)\

Guptaoath Singh wanted the addition of “bathing ghats, kimds'' in clause
(l)(b) of the draft article'. Rau said that the amendment could be accepted
if bathing ghats (bathing places on a riverside) and kunds (ponds ordinarily
used for bathing) were considered important enough to merit special
mention.

From amongst the non-members, Jaya Prakash Narayan suggested an
amendment which sought to add to draft article 9 (1) a sub-clause which
read :

(c) possession of property, exercising or carrying on of any occupation,
trade, business or profession within the Republic.

The amendment was considered by the Constitutional Adviser; it could
not be recommended for acceptance since, firstly, the right to property and
to practise any profession, etc., had already been embodied in draft
article 13^; and secondly, certain restri<stions imposed in the interests of the

^Corresponding provision in the Constitution : article 29.

‘Comments and suggestions on the Draft Constitution, Select Documents ' W, l(i),

p. 28.

''Corresponding provision in the Constitution: article 19.

FUNDAMENTAL RIGHTS

189

general public or of aboriginal' tribes or under Hindu law on the possession
of property might be held to^ be discriminatory on grounds of racev,. caste
or sexh

The Drafting Committee, after considering all the amendments proposed
by the members and others, along with the explanatory notes and comments
of the Constitutional Adviser, reached the conclusion that the only amendment
that should find acceptance was the one which was suggested by the committee
itself, to substitute the words ‘‘State funds” for the words “revenues of the
State”l

When on November 29, 1948, the Assembly took up the consideration of
draft article 9, it had before it about four dozen amendments of which notice
had been given by members. Most of them were either not moved, or were
disallowed as being merely verbal. Among those disallowed was an
amendment seeking the deletion of the word “only” jointly moved by
Mahavir Tyagi, Pattabhi Sitaramayya, (Mrs.) G. Diirgabai, Thakurdas
Bhargava, T. T. Krishnamachari, K. Santhanam, Ananthasayanam Ayyangar
and others. Of the amendments that were actually moved, one by
C. Subramaniam suggested that the second paragraph of clause (1) should be
renumbered as a new clause (la) and that the words “in particular” should
be deletedl Subramaniam pointed out that the first portion of the clause
said that the State could not discriminate against any citizen, and it went
on to say that, in particular, np citizen would be discriminated against in
the matter of access to shops etc., thereby implying that it was the State
which would discriminate in this matter. This, he pointed out, would not
be the case; in shops, places of entertainment etc. it would be the management
who would be in a position to practise discrimination and not the State. This
was the reason for his suggestion that the prohibition of discrimination in
the matter of access to shops, public restaurants, hotels etc. should be
embodied in an independent clauseh Another amendment, moved by Syed
Abdur Rouf, suggested the insertion of the words “place of birth” after the
word “sex” wherever it occurred in the draft article. Attempts might
otherwise be made, he warned, to make discrimination against citizens on
the ground of place of birth under the guise of local patriotism'. Guptanatli
Singh, by his amendment, urged the acceptance of his suggestion that the
words “bathing ghats'' be included after the words “wells, tanks”\ Ambedkar
moved, on behalf of the Drafting Committee, for the substitution of the
words “revenues of the State” by the words “State funds”. He said the

^Comments and Suggestions on the Draft Constitution, Select Documents

P-'29. ' '■ ■ •

'pp..'29-30. , .

^C. A. DeK Yoi, VII, p. 650.

: miA ■' ■ ■ ■ , . ^ - ■

^Ihid.^ VP^ 650-1. • ■ ;

. nbM., p, 653. ■ '

190

FRAMING OF INDIA’S CONSTITUTION

term "‘revenues” did not cover in Indian administrative parlance the funds
of local or district boards and other authorities; and since the fundamental
rights were made obligatory on all such authorities also, it was necessary
to use a wider phraseology\

■ Two amendments moved by K. T. Shah proposed - (i) the addition of
the words “or for Scheduled Castes or backward tribes, for their advantage,
safeguard or betterment” at the end of clause (2) of the draft article, and
(ii) the substitution of clause (1), sub-clauses (a) and (b) by a more detailed
provision which listed a number of institutions and places of public use
or resort. The intention of the second of these two amendments was
to make all places wholly or partially maintained out of public funds or
in any way encouraged, supported or protected by the State, accessible to
all citizens irrespective of caste, sex, birth, etc. He argued :

In a constitution founded upon the democratic equality of ail citizens
... it would be absurd, it would be wholly out of place, to allow any such
discrimination being made.

He felt that places of such utility as schools, hospitals, asylums, libraries,
temples etc., should all be included in the clause and no such institution should
be allowed to be reserved for members of any given sect or communityl
Mohamed Tahir desired a penal provision to be added to clause (1) (b) to the
effect that the contravention of the provision would be an offence punishable
in accordance with the law. Tahir made a particular mention of the position
of the untouchables and their difficulties in sharing equally the privileges
enjoyed by othersl

During the general discussion on the article that followed, S. Nagappa
suggested the omission of the words “maintained wholly or partly out of
the revenues of the State” in clause (l)(b) and asked whether “shop” included
places where labour or services were sold, e.g., laundries, shaving saloons,
etc., and whether places of public resort covered burial or cremation grounds.
Bhupinder Singh Mann felt that fundamental rights would remain incomplete
unless places of worship were included in the draft article. Mohamed Tahir
pressed his suggestion for the addition of the words ''dharamshalas,
musaftrkhams*' after the word “hotels” in clause (IXa). Shibban La! Saxena
vehemently opposed the article for the form in which it had been framed. He
said that only the first portion should remain and the rest of the draft article
omitted. By adding the sub-clause, he said, they were "‘really subtracting
from the generality of the first clause”. Saxena felt that the clause about
the use of wells, tanks, roads, etc., was not worthy of finding a place in
the' Constitution as, firstly, such disabilities as existed were merely transitory
and would vanish with time ; and secetidly, if these detailed provisions were

C, A D^&., VoL vn, pp. 653-4,

■ WJ., pp. 651-2, 655-6.

mid., pp. .654-5. ,,

FUNDAMENTAL RIGHTS

''permancBtly incorporated in the- Constitution, people in other parts of the
world would despise us for the existence of such discrimination in the past”.
He said that clause (l)(a) was particularly unnecessary in view of draft
article IT which categorically abolished, untouchability and prohibited its
practice in any form. Clause (l)(a), he added, could be retained, if at all,
as.. a directive principle of State policy. ■ R. K. Sidhva pressed for -the
definition of the word '‘‘public” which, he felt, was likely to be interpreted
in a restricted sense as defined in the Indian Penal Code^

Ambedkar, who replied to the debate, accepted the amendments moved
by C. Subramaniam, Rouf and Guptanath Singh. Commenting on the
amendments that were not acceptable to him, Ambedkar made the following
points : Mohamed Tahir’s amendment was not necessary, since its purpose
was served by draft article 11 which specifically dealt with untouchability ;
K. T. Shah’s amendment seeking to add Scheduled Castes and Scheduled
Tribes to women and children in clause (2) of the draft article might have
‘‘just the opposite effect” because if these words were added, separate schools
might be opened by the State for Scheduled Castes and Tribes under the
pretext of special provisions being made for them. The word “shop” had
been used in the draft article in a generic sense and meant any “place where
the owner is prepared to offer his service to anybody who is prepared to go
there seeking his service”; it included a laundry, a shaving saloon and an
office of a doctor and of a lawyer. The phrase “place of public resort”
included a burial ground or cremation ground if it was maintained wholly
or partly out of public funds. “Tank” was a wide term and included ponds.
Wells, rivers, streams and canals would not come under draft article 9 but
would certainly be covered by the provisions of article 11 relating to the
abolition of untouchability. The word “public” was used in the draft article
in a special sense. A place was a place of public resort provided it was
maintained wholly or partly out of State funds. The definition of the word
“public” in the Indian Penal Code would not applyl
The amendments accepted by Ambedkar and the one moved by him were
adopted, all others being either withdrawn or negatived'. With consequential
and necessary alterations in regard to numbering, the amended draft
article 9 became article 15 of the Constitution as finally passed by the
Constituent Assembly on November 26, 1949 .

NOTE ON AMENDMENT

Certain judicial decisions laid down that it would not be within the power
of the State to give preferential treatment to backward communities in the

^Corresponding provision in the Constitution: article 17.

. "C. .4, VI!, pp. 656-60, , .

m/d., pp. 660-2.
m/d,, pp. 663.-4

192

FRAMING OF INDIA’S CONSTITUTION

matter of admission to educational institutions, as this would be contrary to
article 15 (prohibition of discrimination) and article 29(2), which provided that
no citizen shall be denied admission to any State educational institution on
grounds of religion, race, caste, language or any one of them. It was felt
that the special responsibility of the State for improving the condition of
backward classes required that the State should have such power. The
Constitution (First Amendment) Act, 1951, added a new clause to article 15,
which made it expressly clear that nothing in that article or in article 29
would prevent the State from making any special provision for the
advancement of any “socially and educationally backward classes of citizens
or for the Scheduled Castes and Scheduled Tribes”.

Equality of Employment Opportunity {Article 16)

The principle of equality of opportunity and prohibition of discrimination
on grounds of religion, race, colour, caste or language, in the matter of public
employment, was contained in similar terms in the drafts submitted by Munshi
and Ambedkar\ K. T. Shah and Harnam Singh also incorporated this basic
principle in clauses 2 and 8 of their respective drafts". When the
Sub-Committee on Fundamental Rights discussed the subject on March
24, 1947, Shah pressed his view that the Constitution should guarantee
non-discrimination, not only in “public employment” but also in “employment
in any enterprise aided or assisted by the State”’l The sub-committee rejected
the suggestion and its draft report contained a provision on equality of
opportunity in public employment in sub-clause (1) (b) of clause 5'.

In his explanatory notes on the draft clauses, B. N. Rau pointed out that
sub-clause (1) (b) was actually adapted from section 298 of the Government
of India Act, 1935^ When the sub-clause was considered by the
sub-committee on April 14 and 15, 1947, Alladi Krishnaswami Ayyar
referred to enactments like the Hindu Religious Endowments Act, which
restricted certain appointments to Hindus, and suggested that it would be
necessary to protect such provisions. This suggestion was accepted and the
provision was redrafted as an independent clause and appeared in the report
of the sub-committee as clause 5 :

There shall be equality of opportunity for all citizens —

(i) in matters of public employment;

IMunshi’s draft, article III (5) and Ambedkar’s draft, article 11(1) (6). Select
Documents II, 4(ii)(b) and (d), pp. 74, 86.

"Select Documents II, 2(ii) and II, 4(ii) (c), pp. 49, 81.

AMinutes. Select Documents II, 4(iii), p. 117.

"^Draft Report, Annexure, clause 5, Select Documents II, 4(iv), p. 138.

^Select Documents II, 4(v) (c), p. 148. Section 298(1) of the Government of India
Act, 1935, provided: ‘‘No subject of His Majesty domiciled in India shall on grounds
only of religion, place of birth, descent, colour or any of them be ineligible for
office under the Crown in India,..”

FUNDAMENTAL RIGHTS

193

(ii) in the exercise or carrying on of any occupation, trade, business or
profession;

and no citizen shall on any of the grounds mentioned in the preceding
section be ineligible for' public office or be prohibited from acquiring,
holding or disposing oi ■ property or exercising oT' carrying on any
occupation, trade, business or profession' within the Union.

Nothing herein contained shall prevent- a law being made prescribing
that the incumbent of an office to manage, administer or superintend the
affairs of a religious or denominational -institution shall, be, a member
of a particular religion, persuasion or d©nomination\

The Sub-Committee on Minorities recommended the addition of u proviso
to clause 5 in order to meet the claims of minorities to special representation
in the servicesl The Advisory Committee first discussed the draft clause
along with the recommendations of the Minorities Sub-Committee on
April 21, 1947. At the outset Alladi Krishnaswami Ayyar objected to the
affirmative assertion in the first part of the clause on the ground that the
claims of minorities could be adequately met without an additional sub-clause
if the affirmative expression v/as changed into a negative one as in section
298 of the 1935 Actl Munslii, on the other hand, stressed the view of the
sub-committee that the general principle regarding equality of opportunity
to all must be asserted in the affirmative; and if any exception was to be
provided in favour of backward communities, that should be done by
incorporating a separate sub-clause to that effect, Munshi added :

The sub-committee feel that we must put the positive side first and then
put in the negative clause, otherwise it will be a dead letter.

Disagreeing with Alladi Krishnaswami Ayyar, Ambedkar pointed out that
even between the members of the same minority, guaranteeing of equality
of opportunity might become essential. He favoured the addition of a proviso
enabling the Government to reserve for the minorities a certain proportion
of posts in the public services. K. M. Panikkar was against an unqualified
declaration of equality of opportunity in the matter of public employment.
In many of the Indian States and most of the Provinces there was a
well-established policy of giving preference to the people of the State or
Province in the matter of public employment; and in some Provinces
conditions existed where local people had but an inadequate share in the
employment provided by the State, and special preference to such people
might even be a necessity. The clause as drafted -declared all such preferences
illegal in respect of employment not O'nly in the Union but also in The imits.
Panikkar thought that ''to provide that there shall be equality of opportuoity
in the matter of public employment ivhether in the unit or in the Union

^Minutes and Report, Annexure, clause 5, Select Documents II, 4(vii) and (viii),
pp. 164, 171-2.

interim Report, Annexure, clause 5, Select Documents II, 5(ii), p. 208.

^See f.n. 5, p. 192 supra,

14,' ■ " -

194

FRAMING OF INDIA’S CONSTITUTION

without reference to local conditions is utterly impracticable”'. Rajagopala-
chari.observed that the clause would rouse all-round resentment if it was
going. to mean that there would be no reservation made in favour of the
people' of any particular unit. Ambedkar felt that the clause as it stood did
■ not prevent any unit from prescribing additional conditions for. employment.
It was, finally decided, to refer, the clause for redrafting to the ad hoa
committee appointed earlier" for considering clause 4*.

.. -When the clause as redrafted came before the Advisory Committee on
April 22, 1947, discussion centred round ' the respective . merits of certain
phrases used in the exception clause which, as recommended by the ad hoc
committee, read :

Nothing herein contained shall prevent the State from making provision
for reservations in favour of classes not adequately represented in the
public services.

Ambedkar suggested the deletion of all the words after the word
“reservations” and in their place the insertion of the words “in public services
in favour of classes as may be prescribed by the State”. If the words “not
adequately represented” were retained, he felt, any reservation made by the
State would be open to challenge in a court of law on the ground that the
classes in whose favour reservation was made happened to be in fact already
adequately represented. Ambedkar was opposed to this matter being the
subject of judicial interpretation.

In an attempt to meet Ambedkar’s argument and at the same time to
retain the spirit of the draft provision as recommended by the ad hoc
committee, Munshi suggested the use of the words; “classes which in the
opinion of the State are not adequately represented”. The modification was
accepted by Ambedkar. A fear was expressed by Ujjal Singh that the words
“not adequately represented” in the clause might be interpreted to mean
that no minority community would be given representation in the services
on a scale higher than what it would get on a population basis. He pointed
out that this would be unfair to the Sikhs for whom 20 per cent of public
appointments were at the time reserved in the Punjab though they formed
only 13 per cent of the population. Rajagopalachari, among others,
considered that there were no genuine grounds for Ujjal Singh’s
apprehensions. He said :

The Chairman may assure Sardar Ujjal Singh that this clause will not
prevent the State from giving a greater proportion. He is under the
impression that reservation is limited to the proportion of population.

Other expressions on the respective merits of which considerable discussion

: ^Also see Report of the Sub-Committee on Fundamental Rights, Panikkar’s note
of dmonXe Select Documents II, 4(ix), p. 186.

^See under Article 15.

’Advisory Committee Proceedings, April 21, 1947, Select Documents 11, 6(iv),
pp. 223-6.

FUNDAMENTAL RIGHTS

195

took place were '‘minorities”, “minorities and classes”, “minorities and
backward classes”, and “classes including minorities” suggested by various
members of the committee as alternatives to the expression “classes” used by
the ad hoc committee. Claiming in the committee that actually he was the
person responsible for the change to- “classes” from “minorities”, Panikkar
observed that “minorities” in India had come to have a specific meaning, /.e.,
to denote religious or political minorities — ^Muslims, Sikhs, etc. “There may
be”, he said, “among- the majority, among the Hindus, for., example, many
classes who have not adequate representation in the services”. The cases
he had in mind were those of small communities like the Namboodiris in
the south and Garhwalis in the north. The Chairman also intervened to
clarify that “classes” included “minorities” and that the draft as it stood
was satisfactory'.

The entire provision as accepted by the Advisory Committee appeared
as clause 5 in its interim report to the Constituent Assembly and was
discussed in the Assembly on April 30, 1947. On an amendment moved
by Munshi and accepted by the mover of the clause, Vallabhbhai Patel,
certain formal changes were made at this stage : in particular, the provision
regarding “equality of opportunity and non-discrimination in matters of
occupation, trade, business or profession and acquiring, holding or disposing
of property” v/as separated from that prescribing “equality of employment
opportunity” and transferred to another clause — clause 8. Clause 5 was
thus restricted to the principle of equality of opportunity in matters of
public employment. Mahavir Tyagi made a suggestion that it should be
recognized that a unit would have the right to give preference in the matter
of public employment to its residents; on this point Patel explained that
the clause did not deprive the Provinces of their right to legislate
ill matters of public employment ; it simply removed the ineligibility of
a citizenl

The clause as accepted by the Constituent Assembly was reproduced in
the Constitutional Adviser’s Draft Constitution of October 1947 as clause 12
without any substantial alterations and appeared as article 10 of the Draft
Constitution prepared by the Drafting Committee with one important
modification : instead of the words “in favour of any particular class of
citizens” the words “in favour of any backward class of citizens” were
inserted. Draft article 10 read as follows :

(1) There shall be equality of opportunity for all citizens in matters of
employment under the State.

(2) No citizen shall, on grounds only of religion, race, caste, sex, descent,
place of birth or any of them, be Ineligible for any office under the State.

^Advisory Committee Proceedings, April 22, 1947, Select Documents !I, 6(iv),
pp. 25S-63. .-

^Select Documents II, pp, 296-7; a A. Deb,, VoL III, pp 431-8.

19.5

FRAMING OF- INDIA’S- CONSTITUTION

: (3) Nothing in this article shall prevent the State from making any
^ : provision for the reservation -of appointments or posts in favour of any’

. backward class of citizens , who, , in the opinion of the State, are not
adequately represented in the services under the State* ’

(4) Nothing in this article shall affect the operation of any law which
provides that the , incumbent of an office in connection with the affairs-
, of any religious or denominational institution or any member of the
.governing body thereof shall be a person professing' a particular
religion or belonging to a particular denominationk
'When the Draft Constitution was circulated for eliciting opinion, a
number of amendments were received. ■ From amongst the members, Pattabhi
Sitaramayya and others suggested the omission of the word ‘‘only” wherever
it occurred in the draft article and the insertion of the words “or discriminated
against” after the word “ineligible” in sub-clause (2); R. R. Diwakar and
S. V. Krishnamoorthy Rao proposed the addition of the words “economically
or culturally” before the word “backward” in clause (3); T. A. Ramalingam
Chettiar suggested the deletion of the word “backward” from clause (3);
Tajamul Husain proposed the deletion of clause (3) altogether; Upendraiiatli
Barman proposed that in clause (3) before the word “backward” the words
“the Scheduled Castes or” be inserted ; and Mrs. Purnima Banerji suggested
the addition at the end of clause (4) of the words “provided that
such a religious or denominational institution is aided or ran by
the State”.

In his notes on the amendments, B. N. Rau commented that while there
could be no great objection to the amendment proposing the addition of
the words “economically or culturally”, it was unnecessary. As for the
omission of the word “backward” from clause (3), he said, it would in
that case be open to a State to reserve posts in favour of any class of citizens
who were not adequately represented in the services and would thus extend
the scope of the clause. The Madras Legislative Council also supported
the omission of the word “backward”, while an advocate from Calcutta
suggested limiting reservation to a period of fifteen years in order to avoid
the growth of a vested interest in backwardnessl
The article came up for consideration before the Assembly on November
30, 1948, Several amendments were moved. Mohamed Tahir’s amendment
to article 10 as modified by Ananthasayanam Ayyangar sought to provide —

(i) that in clause (1), for the words “in the matters of employment”, the
words “in matters relating to employment or appointment to office” be

: substituted ;

(ii) that in clause (2), after the wprds “ineligible for any” the words
“employment or” be inserted.

in, l(i) and 6, pp. 8 and 521-2.

"Comments and Suggestions on the Draft Constitution, Select Documents IV, l(i),
pp. 31-2.

FUNDAMENTAL RIGHTS

197

Both Tahir and Ayyangar considered their amendments to be quite simple
but necessary for making the provision clearer and more comprehensive.
Jaspat Roy Kapoor moved that in clause 2. after the word “birth” the words
“or residence” be inserted. Explaining the purpose of his amendment
Kapoor observed that the existence of one citizenship for the whole country
must carry with it an unfettered privilege of employment in any part of
the country. He had no objection to knowledge of a provincial language
and local conditions being prescribed as prerequisites for employment in
any region, but he strongly resented the condition of long residence laid
down by certain Provinces. He referred to the case of a Province in
which there was said to be, a rule that one should have resided in the
Province for 52 years to become eligible for employment. The object of
his amendment was to remedy such a state of affairs.

Kapoor’s amendment, however, brought in another amendment moved
by Alladi Krishnaswami Ayyar. It sought to add a fresh clause after clause
(2) to enable Parliament to make

any law prescribing, in regard to a class or classes of employment or
appointment to an ofBce under any State for the time being specified in
the First Schedule or any local or other authority within its territory,
any requirement as to residence within that State prior to such employment
or appointment.

The mover explained that it might be necessary to provide residence within
the State as a necessary qualification in the case of certain posts; but instead
of leaving it to individual States to make any rule they liked in regard
to residence, it v/ould be much better if Parliament laid down a general
rule applicable to all States alike, especially for the reason that in any matter
concerning fundamental rights it must be Parliament which had the power
to legislate and not the difierent units in Indiak

Kamath raised the point whether the words “any State for the time being
specified in the First Schedule” mentioned by Alladi Krishnaswami Ayyar
applied to ail the four parts of the Schedule — the States in Parts I, II and
III and the Territories in Part IV — or only to States in the fimt three parts.
He suggested that depending upon whether the former or the latter was the
intention, the language should be modified either to “under any State or
territory in the four Parts I, II, III and IV of the First Schedule” or to
“under any State specified in Parts I, 11, and III of the First Schedule”.
Ambedkar, Munshi and Alladi Krishnaswami Ayyar explained that the
clause as drafted was sufficiently clear and that the reference therein was
obviously intended to cover only the States in Parts I, II, and III and not
territones in Part IV^ i.e. the Andaman and Nicobar Islands.

Apart from the point raised by Kamath, Kapoor’s amendment and the

■C. ,4. i>e6., Vol. VII, pp. 672-7.

VWd., pp. 678, 695-6.

198

FRAMING OF INDIA’S CONSTITUTION

addition suggested by Alladi Krishnaswami Ayyar led to a keen debate in
the Assembly. While Munshi announced the support of the Drafting
Committee for both the amendments, T. T. Krishnamachari suggested that
instead of creating a rule by one amendment and taking away its effect by
another, it would be better to drop both. He considered Kapoor’s amendment
not at all necessary and Alladi Krishnaswami Ayyar’s amendment to be
“beautifully vague”*.

Anantfaasayanam Ayyangar moved another amendment which sought
the insertion of the words “or discriminated against” after the word
“ineligible” in clause (2). Stressing its need, he pointed out that
discrimination could take place not only at the time of an initial appointment
but also later in the matter of promotion, etc.^

Some other amendments also engaged the attention of the Assembly.
Of these, one by Lokanath Misra suggested the deletion of clauses (2), (3)
and (4) on the grounds that clause (2) was superfluous in so far as clause
(1) covered all cases; that clause (3) was unnecessary since it put a premium
on backwardness and inefficiency and also because it was not a fundamental
right of any citizen to claim State employment on any consideration other
than merit: and that clause (4) was not only unnecessary but anomalous
as a secular State was expected to keep its hands clear of all religious
institutions and not to bother about their management, etc. The deletion
of clause (3) was also proposed by Damodar Swaroop Seth who felt that
reservation in services meant the negation of efficiency and good government
and if accepted might give rise to casteism and favouritism. K. T. Shah
wanted that the words “in India” be added after the words “place of birth”
in clause (2) so that the Constitution “primarily and preferentially” reserved
“all available places of employment, of trust or responsibility for the children
of the soil”- Hriday Nath Kunzru proposed that the reservation of seats
for backward classes should be restricted to a period of only ten years. This,
he felt, was desirable, both in the interests of the backward classes and of
the State. Aziz Ahmed Khan, by his amendment, emphatically asserted
the need for the omission of the word “backward” from clause (3) of the
draft articled

During the general discussion on the clauses the use of the word “backward”
proved controversial. Some members supported its omission on the ground
that the scope of the word was likely to be misconstrued by the State
thereby adversely affecting the claims of minority groups for adequate
representation in the services. In this connection. Mohamed Ismail pointed
out that in Madras the word “backward” bore a “definite and technical
meaning” according to which more than a hundred and fifty communities
—all belonging to the majority community— came under this label and, with

=C. A. Deb., Vol. VII, pp. 695-9.

‘Ibid, p. 679.

^Ibld, pp. 673-4 and 679-82.

FUNDAMENTAL RIGHTS

199

the ' addition of 'the Scheduled Castes, decidedly constituted the majority
of the whole population of the Province. If that was the meaning of the
word ‘'backward”, Mohamed Ismair apprehended, the backward classes , in
the minority, communities such as the Christians and . Muslims would - be
totally excluded from the purview of the clause. On the other hand, members
belonging to the backward classes who were given a ' special opportunity
to express their views on the subject which concerned them intimately, came
forward, one' after another, generally to welcome the provision, in clause
(3) of the draft article. Most of them, belonging to the Scheduled Castes,
and Tribes, expressed their apprehension, regarding the scope of the word
‘'backward” and pressed for a clarification so that the word “backward’'
might apply only to them. They, in fact,, suggested that the words
“backward class” be substituted by the words “Scheduled Castes” or
“depressed classes” or the words “Scheduled Castes” added after the words
“backward classes’”.

K, M. Munshi, replying to the various criticisms levelled against the draft
article, referred to the fears expressed by members belonging to the Scheduled
Castes and said :

I cannot imagine for the life of me how, after an experience of a year
and a half of the Constituent Assembly any honourable Member of the
Scheduled Castes should have a feeling that they will not be included in
the backward classes so long as they are backward. . . Look at

v/bat has been going on in this House for the last year and a half. Take

article 11^. . . There has not been a single member of the

non-Scheduied Castes who has ever raised any objection to it. On the
contrary, we members who do not belong to the Scheduled Castes, have,
in order to wipe out this blot on our society, been in the forefront in
this matter ... What we want to secure by this clause are two

things. In the fundamental right in the first clause we want to achieve
the highest efficiency in the services of the State. . : At the same time,
in view of the conditions in our country prevailing in several Provinces,
we want to see that backward classes, classes who are really backward,
should be given scope in the State services;. . . the word “backward’’
signifies that class of people-does not matter whether you call them
untouchables or touchables belonging to this community or that — a class
of people who are so backward that special protection is required (for

' them) /in the services*. .

Speaking \ after Munshi, T. -T. Krishnamachari referred' to ' the • “loose
drafting”:" of , draft ■ article 10 ■■ which,/',; in his'/ view, /'-should ■ find tio':, place in
the,: chapter, on' fundamental ''rights.,: Quoting; the criticism "of;- Ivor,: Jenfiings,^'
Krishnamachari asked whether under the article an illiterate; person could

“Corresponding provision in the Constitution: article 17.

*C. .4. VoL VII, pp. 696-7.

200

FRAMING OF INDIA’S CONSTITUTION

file a suit before the Suprerue Court alleging that he had been denied equality
of opportunity. He also wondered what would be the basis for determining
backwardness in a country where 80 per cent of the people fell into that
categoiy on grounds of illiteracy alone. His feeling was that the clause
as drafted would lead to a great deal of litigation. The Drafting Committee,
he thought, had actually produced a “paradise for lawyers’’‘.

In his reply, Ambedkar accepted three amendments, viz-, (i) Tahir’s as
modified by Anantfaasayanam Ayyangar (ii) Kapoor’s as modified by Munshi
and Alladi Krishnaswami Ayyar and (iii) Ananthasayanam Ayyangar’s. All
the other amendments were rejected by Ambedkar. Replying to T. T.
Krishnamachari?s criticism that the Drafting Committee, instead of producing
a Constitution, had “produced a paradise for lawyers”, Ambedkar said that
the Constitution was certainly likely to give rise to questions involving legal
or judicial interpretations, and they might often require to be taken to
the highest court; but there was nothing to be ashamed of in this since
there was hardly any constitution in the world which was not a “paradise
for lawyers”. Coming to the amendments regarding “residence” moved
by Kapoor and Alladi Krishnaswami Ayyar, he agreed that in a country
with common citizenship, residence should not be a qualification for holding
any public appointment ; but people who were moving from one State to
another as mere birds of passage without any roots could not be allowed
“just to come, apply for posts and, so to say, take the plums and walk
away”. To ensure that any residential qualifications laid down would
apply uniformly throughout the States, it was necessary to vest Parliament
alone with the power of formulating them. Referring to the controversy
regarding the use of the word “backward” in clause (3) of the draft article,
Ambedkar said that the Drafting Committee had to reconcile opposing
points of view to produce a “workable proposition which will be
accepted by all”. If this was borne in mind, it would be seen that no
better formula could be produced than the one embodied in clause (3).
He added :

Unless you use some such qualifying phrase as “backward” the exception
made in favour of reservation will ultimately eat up the rule altogether
... That I think ... is the justification why the Drafting Committee
undertook on its own shoulders the responsibility of introducing the word
“backward” which, I admit, did not originally find a place in the
fundamental right in the way in which it was passed by this Assembly.

Ambedkar referred, finally, to two questions raised during the debate :
first, regarding the definition of “backward community” and the second
regarding the justiciability of clause (?) of the draft article. Regarding the
former he said :

Any one who reads the language of the draft itself will find that we

>C. A. Deb., Vol, VII, pp. 697-9.

FUNDAMENTAL RIGHTS

201

have left it to be determined by each local government. A backward
community is a community which is backward in the opinion of the
Goveniment.

As for the latter, he said :

It is rather difficult to give a dogmatic answer. Personally 1 think it
would be a justiciable matter^

On being put to vote, all the amendments, except those accepted earlier
by Ambedkar, were negatived by the Assembly and draft article 10, as
amended, was adopted to be added to the Constitution. Subsequently it
was renumbered by the Drafting Committee as article 16 without ^ any
alteration or modification in substance:

(1) There shall be equality of opportunity for ail citizens in matters
relating to employment or appointment to any office under the State.

(2) No citizen shall, on grounds only of religion, race, caste, sex, descent,
place of birth, residence or any of them, be ineligible for, or
discriminated against in respect of, any employment or office under
the State,

(3) Nothing in this article jshall prevent Parliament from making any law
prescribing, in regard to a class or classes of employment or appointment
to an office under any State specified in the First Schedule, or any local
or other authority within its territory, any requirement as to residence
within that State prior to such employment or appointment.

(4) Nothing in this article shall prevent the State from making any
provision for the reservation of appointments or posts in favour of any
backward class of citizens which, in the opinion of the State, is not
adequately represented in the services under the State.

(5) Nothing in this article shall affect the operation of any law which
provides that the incumbent of an office in connection with the
affairs of any religious or denominational institution or any member of
the governing body thereof shall be a person professing a particular
religion or belonging to a particular denomination.

NOTE ON AMENDMENT

The Constitution (Seventh Amendment) Act, 1956, classified the territory
of India as comprising- the States and the Union territories. ■ As. a ■consequence
clause (3) of article 16 was amended by substituting for the words “und.er
any State specified in the First Schedule, or any local or other authority
within its territory, any ■ requirement as to residence within that ■Stats”, the
words ^*under the Government of, or* any local or other authority'' within, a
State or Union territory, any requirement as to residence within that State
or Union territory”. ■

A. \D^Z>.,,' VoL,;VII, pp. 699-702. I',:

202

FRAMING OF INDIANS CONSTIUJTION

Abolition of Untouchability {Article 17)

A clause providing for the abolition of the age-old ■ social evil of
“untouchability” was contained in Munshi’s draft of Fundamental ' Rights.
Clause 4(a) of article III of the draft declared : '

Untouchability is abolished and the practice thereof is punishable by the
law of the Union.

Clause 1 of article II {Section 1) of Ambedkaf s ' draft had laid down
that

any privilege or disability arising out of rank, birth, person, family,
religion or religious usage and custom is aboiishedh

The Sub-Committee on Fundamental Rights discussing this clause on
March 29, 1947, accepted Munshi’s draft on untouchability with a verbal
modification that substituted for the words ‘Is punishable by the law of
the Union” the more pithy expression “shall be an offence”l
B. N. Rau explained that what exactly was meant by the practice of
“untouchability” would have to be defined in the law meant to implement
the provision*.

Subsequently, when the sub-committee met on Apri| 14, 1947, to consider
its draft report in the light of the comments received, it was decided to add
the words “in any form” after the word “untouchability”, obviously in
order to make the prohibition of its practice comprehensive\

Tile clause as proposed by the sub-committee in its report'' was discussed
by the Advisory Committee on April 21, 1947. Jagjivan Ram commented
that in the ordinary sense of the term, untouchability was a practice which
prevailed in Hindu society; but he wanted it to be made clear whether
the intention of the committee was to abolish untouchability among Hindus,
Christians or other communities or whether it applied also to inter-communal
untouchability. It was generally agreed that the purpose of the clause was
to abolish untouchability in all its forms — ^whether it was untouchability
within a community or between various communities. K. M, Panikkar,
elucidating the point, observed that there were some Christians also who
suffered from the same disabilities as Hindu untouchables and that what
was therefore really intended was the abolition of the various disabilities
arising out of untouchability*. He explained ;

If somebody says that he is not going to touch me, that Is not a civil

'Munslii’s draft, and Ambedkar’s draft, Select Documents II, 4(ii){b} and (d),
pp. 74, 86.

^Minutes and Draft Report, Annexure, clause 6. Select Documents ' % 4(m) and
(iv), pp. 133, 138. , ' . . ■

®Notes on the Draft Report, Select Documents II, 4(v)(c), p. 148.

^Minutes, April 14, 1947. Select Documents II, 4(vii), p. 164.

^Report, Annexure, clause 7. Select Documents 11, 4(viiiX p. 172.

®Tlie reference was to the depressed classes who had been converted to Christianity
in Travancore-Cochin and Malabar.

FUNDAMENTAL RIGHTS

203

right which I can . enforce in a court of law. There are certain complex
of disabilities that arise from the practice of uiitouchabiiity in . India,
Those disabilities are in the nature of civil obligations or civil disabilities
and what we have attempted to provide for is that these disabilities that
exist in regard to the individual, whether he be a Christian, Muslim or
anybody else, if he suffers from these disabilities, they should be
eradicated through the process of law\

Regarding the object of the clause, Rajagopalachari felt that there was
a very definite legal meaning to it, namely that the law will not hereafter
recognize untouchability in any form as bringing into existence any right
or disability.

He suggested a slight amendment of the clause making ‘The imposition
of any disability of any kind of any such custom of ‘untouchability'’' an
offencel Redrafted in the light of the views expressed by Panikkar and
Rajagopalachari, it appeared as clause 6 in the Interim Report of the
Advisory Committee

“Untouchability” in any form is abolished and the imposition of any
disability on that account shall be an offence^.

When the clause came up for consideration before the Assembly on
April 29. 1947, it had an easy passage. Only three amendments were moved
by H. V. Kamath, S. Nagappa and P. Kunhiraman. Kamath sought to insert
the word “unapproachability” after the word “untouchability” and add the
words “and every” after the word “any”; Nagappa to substitute the words
“observance of any disability” for the words “imposition of any disability”;
and Kunhiraman to add the words “punishable by law” after the word
“offence”. Vallabhbhai Patel, the mover of the clause, considered all these
three amendments to be unnecessary. He said that if untouchability was
declared an offence all necessary adjustments would be made in the law
Oil the subject to be enacted by the Legislature: and it was neither right
nor wise to provide in the fundamental rights for “unapproachability” which
was obviously a corollary to “untouchability” itself, “Untouchability in
any form”, he pointed out, was a legal term and as such the addition of the
words “and every” was also unnecessary. In regard to the second amendment,
he observed that the removal of “untouchability” was the main thing
and if that was made an offence it was quite enough. So far as the
third amendment was concerned, Patel observed that when an offence
was created it was not necessary to provide that it should be punishable
by iaw^.

^Advisory Committee Proceedings, April 21, 1947. Select Documents II, 6(iv),
ppT226-7.'

mid., p, 227.

^Select Documents ll, 7(1), p. 297.

; '^a A. Deb., VoL. Ill, pp. 419-20. .

204

FRAMING OF INDIA’S CONSTITUTION

In the Constitutional Adviser’s Draft Constitution of October 1947 the
third amendment moved by Kunhiraman was in effect accepted and after
the word “offence” the words “which shall be punishable in accordance
with law” were added’. The Drafting Committee considered the
untouchability provision on October 30-31, 1947. The provision finally
appeared in the Draft Constitution of February, 1948 as article 11 in the
following form :

“Untouchability” is abolished and its practice in any form is forbidden.
Ihe enforcement of any disability arising out of “untouchability” shall be
an offence punishable in accordance with law®.

When the Draft Constitution was circulated for eliciting comments,
amendments were received from (1) R. R. Diwakar and S. V. Krishnamoorthy
Rao, (2) S. Nagappa, and (3) Upendranath Barman. The first amendment
sought to define imtouchability in the text of the article and the second to
add the words “as defined by the statute” after the word “untouchability”
in the first line of the draft article®. B. N. Rau pointed out that neither
of the two amendments was necessary since the law to be enacted under
draft article IT for prescribing punishment for offences in respect of
untouchability would naturally define the various forms in which it was
practised. The third amendment proposed the substitution of the words
“the imposition or enforcement” for the words “the enforcement”. This
amendment also was considered unnecessary since the word “enforcement”
he explained, included “imposition”.

Besides these three amendments from members, several representations
were also received in the office of the Constituent Assembly mainly
containing the criticism that article 1 1 as drafted was very wide in so far as it
forbade untouchability in any form. Apart from the communal untouchability
which was objectionable, the representations pointed out that there was
another form of untouchability in religious matters, for example, on occasions
like births, deaths, etc. Commenting on such representations, B. N. Rau once
again pointed out that Parliament would have to enact legislation under
draft article 27 which would “doubtless attempt a definition of
untouchability’”. After considering the various amendments, representations
etc., with B. N. Rau’s explanatory notes and comments, the Drafting
Committee decided that the article as drafted by them did not require any
amendment.

When the article came up for consideration before the Constituent

’Clause 13. Select Documents III, l(i), p. 8.

‘Select Documents III, 6, p. 522. *

•Comments and Suggestions on the Draft Constitution. Select Documents IV, I(i),
p. 32-3. ' ■

‘Coiresponding provision in the Constitution; article 35.

“Comments and Suggestions on the Draft Constitution, iSefect Documents IV, l(i),
p. 32.

FUNDAMENTAL RIGHTS

205

Assembly on November 29, 1948, only one amendment was actually moved,
Naziruddin Ahmad sought to replace the draft by the following ;

No one shall on account of his religion or caste be treated or regarded as
an ‘untouchable’; and its observance in any form may be made punishable
by law\

In support of his amendment Naziruddin Ahmad observed that, though
well knov/n in political parlance, the term “untouchability” had no legal
meaning. He felt that there were quite a variety of things that were commonly
regaided as untouchable, e.g., a man suffering from an epidemic or contagious
disease, certain kinds of food for Hindus and Muslims, women of other
families under some moral precepts and even one’s wife below 15 according
to a certain belief. A loose expression amenable to such a range of
inteneretation, he said, should be avoided. Naziruddin Ahmad’s view found
support from K. T. Shah, who emphasized the need for a precise definition
of the meaning and scope of the term ‘untouchability’. In the absence of a
definition, he feared that lawyers might make capital out of such
an article.

Other members — V. I. Muniswamy Pillai, Monomohan Das, Santanu
Kumar Das and (Mrs.) Dakshayani Vela 3 mdhan — all belonging to the
Scheduled Castes — who spoke on the draft article, welcomed it as a historic
measure designed to put an end to the great social evil which had long
been a shame and a disgrace to Indians^

Ambedkar did not reply to the debate or to Naziruddin Ahmad’s amend-
ment and the points made by him and Shah. The amendment was negatived
by the Assembly and the draft article as proposed by Ambedkar adopted
amidst shouts of “Mahatma Gandhi ki jai”l It was renumbered as
article 17 ;

“Untouchability” is abolished and its practice m any form is forbidden.
I'he enforcement of any disability arising out of “Untouchability” shall
be an offence punishable in accordance with law.

Abolition of Titles {Article 18)

The note prepared by K. T. Shah on fundamental rights contained as
many as five clauses devoted to the prohibition of and restriction on the
conferment and acceptance of titles, honours, distinctions and privileges*. A
discussion on these clauses was initiated in the sub-committee meeting on
March 25, 1947 with Shah making a passionate appeal for the abolition
of titles and of the privileged class of title-holders. Despite objections — Alladi
Krishnaswami Ayyar’s amongst tjj^em — Shah succeeded in getting the

'C. A. Deb., yolVll,p. 665.

nbid., pp. 665-8.

nbid., p. 669.

^Clauses 3-7. Select Documents 11, 2(ii), p. 49.

206 '

FRAMING OF INDIa’s CONSTITUTION

sub-committee tO' accept by a majority vote the draft of a provision dealing
with the conferment and acceptance of titles'. The provision was, with a
few minor modifications, incorporated as clause 7 in the draft report and
as clause 8 in the final report of the sub-committee :

No titles except those denoting an office or a profession shall be conferred
' by the Union.

No citizen of the Union and no person holding any office of profit or
trust under the State shall, without the consent of the Union, accept
any present, emolument, office or title of any kind from any foreign

. Stated

. The clause came up for consideration before the Advisory Committee
on April 21, 1947. The first portion of the clause ran into heavy weather,
with several influential members expressing themselves against the abolition of
titles. Rajagopalachari maintained that, especially if there was a nationalist,
communist or socialist policy and the profit motive was removed, there
would be a great necessity for creating a new motive: supposing a man
has rendered great social service, there should be nothing in the way of
the State giving recognition and inducing others to follow his example.
Supporting Rajagopalachari’s stand, Alladi Krishnaswami Ayyar and M.
Ruthnaswamy also proposed the omission of this paragraph. Shah, however,
was emphatic that the conferring of titles offended against the fundamental
principle of equality of all citizens so solemnly sought to be enshrined in
the Constitution. K. M. Panikkar, favouring a half-way solution, advocated
a distinction being drawn between titles which were heritable and thereby
created inequality, and titles conferred by the Government as a reward or
in recognition of merit. Only the former needed to be abolished. Pressed
to a vote, the suggestion for the omission of the paragraph was lost by 14
votes to 10 : but Panikkar’s proposal that only heritable titles should be
forbidden was accepted by Shah and unanimously adopted by the committeel
The entire provision, as finally redrafted by the committee, appeared
as clause 7 in the committee’s interim report to the Constituent
Assembly :

No heritable titles shall be conferred by the Union.

No citizen of the Union and no person holding any office of profit or
trust under the State shall, without the consent of the Union Government,
accept any present, emoluments, office or title of any kind from any
foreign State'^.

Moving the clause for the consideration of the Assembly on April 30,

^^Minutes, March' 25, 1947. See also Advisory Committee Proceedings, April 21,
1947. Select Documents 11, 4(iii); 11, 6(iv), pp. 119, 228.

^Select Documents II, 4(viii), p. 172.

^Proceedings, Select Documents II, 6(iv), pp. 227-9.

^Interim Report on Fundamental Rights, Annexure, Select Documents II, 7(i),
p. 297.

FUNDAMENTAL RIGHTS

207

1947, Vallablibhai Patel observ^ed that titles were “often' being abused for
co^mipting the public life of the- country”, and that it was therefore better
that their abolition should be provided as a fundamental right. Referring
to the divergence of opinion in the various committees regarding the first
paragraph' of the clause, he said that despite the adoption of the clause
after a prolonged debate, the word “heritable” had become a matter of
controversy and it had, therefore, been subsequently “agreed •after
considerable discussion” to drop the word through a formal amendment in
the Assembly'.

The amendment moved by M. R. Masani suggested two changes : first,
that the word “heritable” be dropped so that in free India the State would
not confer any title at all — ^heritable or otherwise— on any individual ; and
second, to distinguish between citizens of the Union and persons holding
office under the State. The former would be entirely barred from accepting
any titles from any foreign State^.

Supporting Masani’s amendment, Sri Prakasa drew a distinction between
titles and honours and pointed out that the clause prohibited only the
conferment of titles and did not stand in the way of the State bestowing
suitable honours. Of those who opposed the clause, Balkrishiia Sharma
referred to terms like “Mahatma” and “Desharatna” given by the people
to Gandhiji and Rajendra Prasad and expressed the view that the prohibition
of titles was against the tradition of the country and the psychology of its
people. On the other hand, Seth Govind Das and H. V. Kamath complained
that the clause covered only the future conferment of titles and that it was
necessary also to abolish titles conferred early by the “alien imperialist
Government”. Vallablibhai Patel in replying to the debate referred to the
point raised by Govind Das and Kamath. Pleading for forgetting “all
about past titles” he said that the Assembly was really legislating for the
future and not for the past; some people who had obtained titles from the
British Government after they had “spent so much” and “worked so hard”
for them, should be left alone; disturbing their titles might be “interpreted
as a sign of spiteful feeling”. The clause, amended as proposed by Masanf s
amendment was adopted^

With minor modifications the provision appeared as ciauss 14 in the
Constitutional Adviser’s Draft Constitution and as article 12 in the Draft
Constitution prepared by the Drafting Committee :

(1) No title shall be conferred by the State.

(2) No citizen of India shah accept any title from any foreign State.

(3) No person holding any office of profit or trust under the State shall,
without the consent of the President, accept any present, emolument, title
or office of any kind from or under any foreign State.

'^a A. Deb,, Vol, III, p. 438.
pp. 439-40.
pp. 439-44.

208

FRAMING OF INDIA’S CONSTITUTION

Discussing the provision as proposed by the Constitutional Adviser, the
Drafting Committee at one stage considered the addition of a proviso to
protect the right of the Rtders of the Indian States to confer titles on citizens
domiciled in their territories. First formulated by the committee on October
30, 1947, the draft of the proviso was reconsidered on October 31, 1947
and January 19, 1948. Finally, on January 20, 1948, the committee decided
to drop the proviso altogether’. A memorandum on behalf of the States
submitted by V. T. Krishnamachari and others again raised the question of
the propriety of depriving the Rulers of the Indian States of their prerogative
to confer titles on their subjects. The memorandum proposed the amending
of clause (1) of the draft article so as to bring it in line with the provision
recommended by the Advisory Committee which had provided for the
{orohibition of the conferment of heritable titles alonel

Of the amendments received from members, those by Sidhva and Tajamul
Husain respectively suggested the deletion of the word “title” from clause
(3), and the deletion of clauses (2) and (3) and their substitution by another
clause (2) ;

No citizen of India shall accept any present, emolument, title or office of
any kind from or under any foreign Stated

Commenting on the amendments, B. N. Rau observ'ed that Sidhva’s
amendment to omit the word “title” from clause (3) was based on
a misunderstanding of the article. This clause dealt with cases like that of
a citizen of a foreign State who might temporarily be employed by the
Government of India and whose State desired to honour him with a title
for services rendered before he came to India. Regarding Tajamul Husain’s
amendment he felt that if it was accepted, a citizen of India would be
prohibited from accepting any prize or office offered by a foreign State
for his contribution to literature or science or even a Chair in an oriental
language in any foreign university. It was to avoid such an eventuality,
he added, that clause (2) of the draft article had been restricted to the
acceptance only of titles. Further, B. N. Rau pointed out, the clause
proposed by Tajamul Husain did not cover the case of a foreign citizen
who was temporarily employed in India and whose State wanted to honour
him. Clause (3) of the draft article was intended to cover such cases*.

While considering the various comments, suggestions and amendments
received on draft article 12, the Drafting Committee itself decided to redraft
clause (1) of the draft article to read :

Titles or other privileges of birth shall not be conferred by the State.

‘Minutes, October 30-31, 1947; Janua^ 19-20, 1948. Select Documents III, 5,
pp. 327, 328, 408, 410; also III, 6, p. 522:

“Comments and Suggestions on the Draft Constitution, Select Documents IV, l(i),
pp. 222-3.

Hbid., p. S3.

Hbid.

iroroAMENTAL RIGHTS

209

The Special Committee further amended the clause by adding the word
“hereditary” before the word “titles”. Expressing his opinion on the
amendment of the Drafting Committee as further amended by the Special
Committee, B. N. Rau observed that presumably it was not intended that
appellations such as Field-Marshal, Admiral, Air-Marshal, Chief Justice or
Doctor, indicating an office or profession should be discontinued. He felt
that the term “State” as defined in draft article T might conceivably include
universities also^.

Alladi Krishnaswami Ayyar disagreed with the view that “State” as defined
in draft article 7 could include a university or that any distinction conferred
by a university or any distinction of rank conferred by the State could be
considered a title within the meaning of draft article 12; but he had no
objection to the amendment suggested by the Constitutional Adviser being
accepted. However the only amendment that found favour with the
Drafting Committee was the one proposing to redraft clause (1) of the draft
article to read :

Hereditary titles or other privileges of birth shall not be conferred by the
State*.

When on November 30, 1948, draft article 12 came up for consideration
before the Constituent Assembly, notices of more than two dozen amendments
had been given, of which only three were moved. The first by T. T.
Krishnamachari sought to add the words “not being a military or academic
distinction” after the word “title” in clause (1). He referred to the past
history of titles conferred by the British in India and the general opposition
to the continuance of such titles after independence. He did not consider
the article complete in so far as it did not provide for specific non-recognition
of titles already granted by the British and still retained by some individuals.
However, so far as his particular amendment was concerned, it was necessary,
firstly because certain types of titles had to be permitted, the Government
having, for example, already decided to confer certain military distinctions ;
secondly, because the State might decide to revive academic titles like
Mahamahopadhyaya, and lastly, because a university might not be
completely divorced from a State in consonance with the definition of the
latter in draft article T. The second amendment moved by Lokanath
Misra and supported by Kamath was to the effect that titles should neither
be conferred nor recognized. They felt that it was most desirable to day
down clearly that the intention of the Assembly was not only to abolish
the conferment of titles in future but also to prohibit State recognition of
the titles already conferred by the British. The third amendment moved by

# '

Corresponding provision in the Constitution; article 12.

"Comments and Suggestions on the Draft Constitution. Select Documents IV, I(i),
P. 31"
md,

^See f,n. I supm.

210

FRAMING OF INDIA’S CONSTITUTION

Naziraddin Ahmad was to substitute the prohibition of acceptance of titles
from foreign States by non-recognition of such titles by the State. Justifying
his amendment Naziruddin Ahmad said that the State had no means of
giving effect to clause (2) as it stood in the draft article, since no penalty
was provided for an individual actually accepting any title from any foreign
State'.

Ambedkar did not move the amendment for redrafting clause (1) of the
draft article, earlier accepted by the Drafting Committee. He, however,
accepted the amendment to the clause moved by T. T. Krishnamachari.
Replying to Naziruddin Ahmad, he observed :

It would be perfectly open under the Constitution for Parliament . . .
to make a law prescribing what should be done with regard to an individual
who does accept a title contrary to the provisions of this article.

Turning to Kamath who had asked whether non-acceptance of

titles was a justiciable right, Ambedkar replied in the negative and

added :

The non-acceptance of titles is a condition of continued citizenship ; it is
not a right, it is a duty imposed upon the individual that if he continues
to be the citizen of this country then he must abide by certain conditions ;
one of the conditions is that he must not accept a title because it would be
open for Parliament, when it provides by law as to what should be done
to persons who abrogate the provisions of this article, to say that if any
person accepts a title contrary to the provisions of article 12(1) or (2),

certain penalties may follow. One of the penalties may be that he may

lose the right of citizenships.

On December 1, 1948, the Constituent Assembly rejected the amendments
moved by Lokanath Misra and Naziruddin Ahmad and adopted draft article
12 as amended by T. T. Krishnamachari’s amendment to clause (1)1
Subsequently, in revising the Draft Constitution the Drafting Committee split
clause (3) into two clauses — (3) and (4) — and renumbered the entire article
as article 18‘ :

(1) No title, not being a military or academic distinction, shall be
conferred by the State.

(2) No citizen of India shall accept any title from any foreign State.

(3) No person who is not a citizen of India shall, while he holds any
office of profit or trust under the State, accept without the consent of the
President any title from any foreign State.

(4) No person holding any office of profit or trust under the State shall,
without the consent of the President, accept any present, emolument, or
office of any kind from or underr any foreign State.

’C. A. Deb., Vol. VII, pp. 704-7.

’‘Ibid., pp. 708-9.

mid., p. 711.

^Select Documents IV, 18, p. 755,

FUNDAMENTAL RIGHTS

211

RIGHT TO FREEDOM
Articles 19-22

Freedom of Speech, etc. {Article 19)

The Sub-Committee on Fundamental Rights first considered the rights
to fre edom of expressio n, association, assembly etc., as contain e d in the
djafis of Munshi .and Amb edkar, on March 25. 1947 . Munshi’s draft
prescribed that every citizen should have, within the limits of and in
accordance with the law of the Union, several personal rights safeguarded
to him, including the rights of freedom of expression of opinion, of free
association and combination, of assembling peacefully and without arms, of
secrecy of correspondence, and of free movement and trade. The freedom
o f the press was also jo be g uarantee d, subject on ly t o such restrictions
impos ed by t he law of _ the Unio n as mighU ae. -necessary- in . -the interests of
public OTder pr_ morality'. Ambedkar’s draft, besides providing that “no
law shall be made abridging the freedom of speech, of the press, of
association, and of assembly except for considerations of public order and
morality”, also laid down the citizen’s right to reside and, subject to permission
of the State, to settle in any part of India^

In its draft report, the sub-committee formulated five sj^cific rights of
the citizens, viz., (i) the right to freedom of sj^ech and expression, (ii) the
right to assemble peaceably and without arms, (iii) the right to form
associations or unions, (iv) the right to the secrecy of correspondence, and
(v) the right to freedom of movement throughout the Union, to reside and
settle in any part of the Union, to acquire property, and to follow any
occupation, trade, business or profession. While the last of these rights
was contained in clause 14 and was guaranteed “subject to such reasonable
restraints as the law may impose”, the other four rights were embodied
in clause 9 and the liberty for their exercise was made subject generally
to public order and morality; each individual right was also subject to certain
specific restrictions’.

Draft clause 9 was not considered satisfactory by Alladi Krishnaswami
Ayyar who suggested that the effect of the clause on sect ion 153A'’ of the
Indian Penal Code should be carefully studied; in view of the fact that the
specific reference to “obscene, slanderous and libellous utterances” in the
restrictive proviso to the “freedom of speech and expression” provision in

'Munshi’s draft, article V (1) and (2). Select Documents II, 4(iiXb), p. 75.

“Ambedkar’s draft, article 11(1), (12) and (7). Select Documents II, 4(ii)(d),

pp. '86-7."

^Minutes, March 25, 1947 and Draft Report, KmxtimtQ, Select Documents II,
4(m) and (iv), pp. 119-20,139.

^Section 153-A of the Indian Penal Code provides : “Whoever by words, either
spoken or written, or by visible representations, or otherwise, promotes or attempts

212

FRAMING OF INDIA’S CONSTITUTION

siib“Clause (a) might give rise to an argument that '‘preaching class hatred”
was not covered, it was essential that “class hatred” was also specifically
mentioned in the proviso. He also suggested that “secrecy of correspondence”
need not find a place in a chapter on fundamental rights since such a provision
might checkmate a prosecution in establishing cases of civil and criminal
conspiracy and “lead to endless complications and difficulties in the
administration of justice”. He made a further point that besides public
order and morality, the exercise of the rights in clause 9 should also be
subject to the existence of a grave emergency threatening the Union or any
of its unitsl

On April 4, 1947, in a letter to B. N. Rau, Alladi Krishnaswami Ayyar
wrote:

The recent happenings in different parts of India have convinced me,
more than ever, that all the fundamental rights guaranteed under the
Constitution must be subject to public order, security and safety though
such a provision may to some extent neutralize the effect of the
fundamental rights guaranteed under the Constitution^.

K. T. Shah expressed his disagreement with the limitation of the right
“to assemble peaceably and without arms” only to citizens. He thought
that it would be impossible in actual practice to make a distinction between
citizens and non-citizens when a large crowd assembled. He was also
critical of the use of the term “public order and morality” since it was
“very vague” and its connotation changed substantially from time to time.
In a land of many religions, with different conceptions of morality, different
customs, usages and ideals, he said, it would be extremely difficult to get
unanimity on what constituted morality. If it was not to degenerate into
tyranny of the majority it was necessary either to define more clearly what
was meant by the term “morality” or drop it altogether®.

When the sub-committee re-assembled on April 14, 1947 to consider the
draft clauses in the light of the members’ comments, Alladi Krishnaswami
Ayyar initiated a discussion on the necessity of imposing limitations on the
rights to freedom in situations of grave emergency and danger to the security
of the State. He succeeded in bringing round the sub-committee to his
point of view that a separate clause to this effect would be included. The
sub-committee also decided to bring together the five rights in the two draft

to promote feelings of enmity or hatred between different classes of the citizens of
India shall be punished with imprisonment which may extend to two years, or
with fine, or with both.”

^Comments on the Draft Report, Notes by Alladi Krishnaswami Ayyar, Se/ect
Documents 11, 4(v)(g), pp. 158-9.

^Select Documents II, 4(v)(a), p. 143. The reference was to the communal riots
that had broken out in certain parts of the country.

^Comments on the Draft Report, Note by K. T. Shah, Select Documents II, 4(v)
(f), pp. 155, 157,

FUNDAMENTAL RIGHTS

21:3

clauses — clauses 9 and 14 — under a single provision. The consolidated
provision constituted clause 10' of the report of the sub-committee:

There shall be liberty for the exercise of the following rights subject to
public order and morality or to the existence of grave emergency declared
to be such by the Government of the Union or the unit concerned
whereby the security of the Union or the unit, as the case may be, is
threatened :

(a) The right of every citizen to freedom of speech and expression.

The publication or utterance of seditious, obscene, slanderous, libellous
or defamatory matter shall be actionable or punishable in accordance
with law.

(b) The right of the citizens to assemble peaceably and without arms.
Provision may be made by law to prevent or control meetings which
are likely to cause a breach of the peace or are a danger or nuisance
to the general public or to prevent or control meetings in the vicinity
of any chamber of legislature.

Provision may be made by law to regulate and control in public
interest the exercise of the foregoing right provided that no such provision
shall contain any political, religious or class discrimination.

(d) The right of every citizen to the secrecy of his correspondence.
Provision may be made by law to regulate the interception or detention
of articles and messages in course of transmission by post, telegraph or
otherwise on the occurrence of any public emergency or in the interests
of public safety or tranquillity.

(e) The right of every citizen to move freely throughout the Union.

(f) The right of every citizen to reside and settle in any part of the
Union, to acquire property and to follow any occupation, trade, business
or profession.

Provision may be made by law to impose such reasonable restrictions as
may be necessary in public interestsh

In minutes of dissent appended to the report,, Alladi Krishnaswami Ayyar
again stressed his objection to the inclusion of “secrecy of correspondence”
as a fundamental right. He felt that it might seriously affect the provisions
of the Indian Evidence Act. The result of the clause would be that all
private correspondence would assume the rank of a State paper". Referring
to the Indian Post Office Act, he said that its provisions were more than
adequate for safeguarding the secrecy of private correspondence and there
was no justiication for inserting a constitutional guarantee. K. M. Panikkar

^K&poxty Select Documents II, 4(viii), pp. 172-3. See also B. N. Rau’s
explanatory noits. Select Documents ll, p. 148.

p, 179. The Indian Evidence Act protects the secrecy of correspondence
only in special cases: chapter 9, sections 120-127. Sections 123 and 124 protect

the secrecy of State papers, Le., records relating to the affairs of the State.

214

FRAMING OF INDIANS CONSTITUTION

supported the contention of Alladi Krishnaswami Ayyar and said that any
guarantee of "'secrecy of correspondence” restricted the powers . of the
executive jaiacliiiiery unnecessarily and limited the censorship of
correspondence and communications to the occurrence of a public emergency
or in the interests of public safety or tranquillity. He felt that the provision
required strict examination before acceptance.

Scrutinizing clause 10 from the point of view of minority interests, the
Sub-Committee on Minorities suggested that the effect of the right to form
associations or unions embodied in sub-clause (c) on existing legislation
regarding criminal tribes should be examined'.

The Advisory Committee took up the consideration of the clause along
with the recommendations of the Minorities Sub-Committee on April 21,
1947. At the outset, on Ambedkar’s suggestion, the proviso to sub-clause (a)
was redrafted “for the sake of symmetry of language”. With Alladi
Krishnaswami Ayyar stressing his strong objection to the secrecy of
correspondence being protected as a fundamental right, his suggestion
to omit sub-clause (d) dealing with this right was readily agreed to. On
a suggestion from C. Rajagopalachari, it was decided that in the proviso
to sub-clause (f), in addition to “public interests” the “interests of minorities
and groups” should also be specifically mentioned. The suggestion was
strongly supported by Jaipal Singh who, himself an adivasi, said that it was
essential that the lands of the adivasis should be definitely protected by
the Constitution since land was their only hope.

During the discussions, several other suggestions emerged. Alladi
Krishnaswami Ayyar again emphasized the need for including the phrase
“class hatred” in the proviso to sub-clause (a). He argued that since the
words “defamation”, “sedition” etc., used in the proviso did not cover “class
hatred”, the inclusion of the phrase was essential to stifle any tendency on the
part of the people to promote it. He was supported by Rajagopaiachari
who emphasized that the fundamental peace and orderly progress
of the country depended upon communal peace and harmony and
therefore speeches and utterances which were likely to foster communal
hatred must of necessity be prevented. Syama Prasad Mookerjee, Munshi
and Bakshi Tek Chand were opposed to the views of Alladi Krishnaswami
Ayyar and Rajagopalachari. They favoured the retention of the draft as
recommended by the sub-committee. Mookerjee felt that the addition of
the words “class hatred” or “class or communal hatred” would be dangerous
in so far as it might be abused by a party in power construing as “class
or communal hatred” even a simple expression of opinion against it.
Munshi pointed out that the words "‘class or communal hatred” were omitted
from the draft provision because these words might permit the units to
make all kinds of drastic laws ; and the practice of all civilized countries

^Minutes, April 17, 1947. Select Documents ll, 5(i), p. 201,.

FUNDAMENTAL RIGHTS

and the opinion of all constitutional experts was in favour of permitting,
freedom of public expression, even tending to class or coininunai hatred,
up to the point where it led to a breach of peace or public order. Tek
Chand thought that there was no section in the whole of the Indian
Penal Code , which had been more abused by the Governiiients of the
time than section 153 A with its sanction for prosecuting people
on the ground of creating ‘‘class hatred”. He cited an instance in which
a “police force” was construed as being a class in itself and a newspaper
was prosecuted under the section simply because it wrote a.rticles against
the police.

Regarding the recommendation of the Minorities Sub-Committee for
examining the position of criminal tribes vis-^a-vis freedom of
movement embodied in sub-clause (e), the Advisory Co'mmittee accepted
the views expressed by Panikkar and MunsM that every individual in
a so^-called criminal tribe was not a criminal ; and if the aim was
to prohibit the movement of suspected characters, that could be fully
achieved on the ground of “public order” without altering the language of
the sub-clause.

The entire clause as modified by the amendments of Ambedkar [redrafting
the proviso to sub-clause (a)], Alladi Krishnaswami Ayyar [omitting sub-
clause (d) regarding “secrecy of correspondence”], and Rajagopalachari
[substituting the words “in the public interest including the protection of
minority and tribes” for the words “in public interests” in sub-clause (f)]
was adopted by the committee and incorporated as clause 8 in its
interim report to the Constituent Assembly with the further consequential
change that sub-clauses (e) and (£) were re-numbered as (d) and (e)
respectively^

Clause 8 came up for consideration before the Constituent Assembly on
April 30, 1947. While moving the clause, Vallabhbhai Patel dropped the
provisos to sub-clauses (a), (b) and (c). R. K. Sidliva, who had earlier given
a formal notice of an amendment to delete these provisos, justified their
omission on the ground that they made the rights proposed to be guaranteed
by the clause “nugatory”. There were a number of other, amendments
seeking to modify these provisos but they were rendered redundant because
the provisos were themselves not moved. Of the few amendments that were
moved, Somnath Lahiri’s sought to replace the phrase “security of the Union”
by the phrase “defence of the Union”. He thought that the word “security”
was so vague that the Government might take advantage of the term for
its own ends. J. J. M. Nichols-Roy from Assam pointed out that the proviso
to sub-clause (e) was put in purposely in order to safeguard the land and
other interests of minorities and tribal people, who were full of fear that

^Proceedings, April 21, 1947: Interim Report, Annexnre. Select Documents II,
6(iv) and 7(i), pp. 230-6, 297.

216

FRAMING OF INDIANS CONSTiTUTION

in the new Constitution the protection for the holding of land which they
had enjoyed during the British regime would be withdrawn. There was a
great deal of misappreliension in the minds of the people in the tribal and
excluded areas that their coming within India would practically bring them
under the exploitation of the people of the other parts of India and in the
result they would lose their land. He therefore not only pressed for the
omission, of the word ‘"reasonable”, so as to save from judicial review action
taken to protect the interests of the tribal people, but also asked for an
authoritative statement from Prime Minister Nehru that the protection which
the tribes in Assam enjoyed for their land would not be withdrawn. Mmishi,
P. S. Deshmukh and Jaipal Singh supported the deletion of the word
“reasonable” as proposed by Nichols-Roy. Jaipal Singh also sought an
unequivocal assurance for the tribal people that the protection available to
adivasis under the existing laws would be continued^

Intervening in the debate, Jawaharlal Nehru supported the deletion of
the word “reasonable” from the proviso to clause (e). Referring to the
assurances which Nichols-Roy and Jaipal Singh had demanded on behalf
of the tribal and aboriginal people, Nehru said :

1 completely agree that the tribal areas and the tribal people should be
protected in every possible way and the existing laws . . . should continue
and, maybe, should be added to when the time comes.

He added :

I am quite sure the House will agree with me. . . that every care
should be taken in protecting the tribal areas, those unfortunate brethren
of ours who are backward through no fault of theirs, through the fault ot
social customs, and maybe, ourselves or our forefathers or others ; that
it is our intention and it is our fixed desire to help them as much as
possible ; in as efficient a way as possible to protect them from possibly
their rapacious neighbours occasionally and to make them advanced
Munshi moved three amendments to the clause, two of which were of
a drafting nature and sought the substitution of the words “except in grave
emergency” for the words “to the existence of grave emergency” in the
preamble to the clause, and the substitution of the words “exercise or carry
on” for the word “follow” in sub-clause (e). The third amendment proposed
that sub-clause (e) which guaranteed the right ""to acquire property” etc.,
should be so amplified as to cover also the right to “hold or dispose of”
property".

Patel accepted the amendments moved by Munshi and Nichols-Roy and
rejected the rest. Opposing Lahiri’s amendment for replacement of the
word ‘"security” by the word “defence’", he pointed out that “security” was
a comprehensive word which embraced both internal and external security

A. Deb., Vol. in, pp. 445-54.

Hbid., pp. 454-5.
mid., pp. 452, 455.

FUNDAMENTAL RIGHTS

217

unlike the word ''defence” which comoted only external security. Referring
to Jaipal Singh’s apprehension about the effect of the clause on the existing
laws which afforded protection and security to the tribal people, he explained
that all existing legislation was left untouched except in so far as it
abrogated the fundamental rights. However, added Patel, it was not
in the interests of the tribals "to keep the tribes permanently in their
present state”. He hoped that when ten years later fundamental rights
were reconsidered, the tribals would have come up to the level of other
citizens and it would be possible to do away with the word "tribes”
altogether. He added:

It is not befitting India’s civilization to provide for tribes. . .It means
something and it is there because for two hundred years attempts have been
made by foreign rulers to keep them in groups apart with their customs
and other things in order that the foreigners’ rule may be smooth. The
rulers did not want that there should be any change. Thus it is that we
still have the curse of untouchability, the curse of the tribes, the curse of
vested interests and many other curses besides. We are endeavouring to
give them all fundamental rights\

The clause as adopted by the Assembly was reproduced by the
Constitutional Adviser as clause 15 in his Draft Constitution of October
1947, with two significant alterations. First, he introduced an independent
sub-clause making it clear that the enumeration of the fundamental rights
would not restrict the power of the State to make any law or to take any
executive action during a period of emergency. Secondly, he added another
sub-clause to the effect that none of these fundamental rights would affect
the operation of any law which, in the interests of the public, including the
interests of minorities and special tribes, imposed any restrictions on the
exercise of these rights^

The Drafting Committee considered this clause for eleven days. In the
process, the clause underwent many changes. As finalized by the committee,
it read"":

(1) Subject to the other provisions of this article, all citizens shall have the
right—

(a) to freedom of speech and expression ;

(b) to assemble peaceably and without arms;

(d) to move freely throughout the territory of India;

(e) to reside and settle in any part of the territory of India ;

(f) to acquire, hold and dispose of property ; and

A, Deb,, Yol III, pp. 455-6.

‘^Select Documents III, l(i), pp. 8-9.

^Drafting Committee Minutes, October 31, November 1, 3-8, 1947; January 19-21,
194%, Select Documents III, 5, pp. 328 ff., and III, 6, art. 13, pp. 522-3.

218

FRAMING OF INDIANS CONSTITUTION

(g) to practise any profession, or to carry on any occupation, trade or
business.

' (2) Nothing in sub-clause (a) of clause (1) of this article shall affect the

operation of any existing law, or prevent the State from making any law,
relating to libel, slander, defamation, sedition or any other matter which
offends against decency or morality or undermines the authority or
foundation of the State.

(3) Nothing in sub-clause (b) of the said clause shall affect the operation
of any existing law, or prevent the State from making any law, imposing
In the interests of public order restrictions on the exercise of the right
conferred by the said sub-clause.

(4) Nothing in sub-clause (c) of the said clause shall affect the operation
of any existing law, or prevent the State from making any law, imposing,
in the interests of the general public, restrictions on the exercise of the
right conferred by the said sub-clause.

(5) Nothing in sub-clauses (d), (e) and (f) of the said clause shall affect the
operation of any existing law, or prevent the State from making any law,
imposing restrictions on the exercise of any of the rights conferred by the
said sub-clauses either in the interests of the general public or for the
protection of the interests of any aboriginal tribe.

(6) Nothing in sub-clause (g) of the said clause shall affect the operation
of any existing lav/, or prevent the vState from making any law, imposing
in the interests of public order, morality or health, restrictions on the
exercise of the right conferred by the said sub -clause and in particular
prescribing, or empowering any authority to prescribe, the professional or
technical qualifications necessary for practising any profession or carrying
on any occupation, trade or business.

With reference to the use of the words “for the protection of the interests
of any aboriginal tribe” in clause (5) instead of the words “the protection
of minority groups and tribes” adopted by the Assembly earlier, the Drafting
Committee stated in a footnote that in its opinion no provision was necessary
in the article for the protection of any minority group. Provision for the
suspension of these fundamental rights during an emergency was omitted
from this article and included in Part XI relating to emergency provisions.

When the Draft Constitution was circulated for eliciting comments and
reactions, a large number of amendments and suggestions in regard to the
draft article were received. It was suggested that in clause (5) of the article,
the words “vSiate” and “aboriginal tribe” be replaced by the words
“Parliament” and “Scheduled Tribe”; and that in clause (6), the words “in
the interests of public order, morality or health” be replaced by the words
“in the interests of the general public”. Commenting on the amendment
seeking to replace the word “State” by the word “Parliament”, B. N.
Rau pointed out that its acceptance might result in preventing the States
from imposing necessary restrictions on persons detained in prison or in

FUNDAMENTAL RIGHTS

219

mental hospitals or on any nomadic or migratory tribes. As for replacing
the words “aboriginal tribe” by the words “Scheduled Tribe”, he considered
that the expression “Scheduled Tribe” was more specific than the expression
“aboriginal tribe” and might be accepted. Regarding the words “public
order” in the draft article, B, N. Rau explained that they had been used
because the carrying on of certain occupations in certain localities, such
as the sale of meat in the vicinity of a temple, might have to be prohibited
or restricted in the interests of public order. Since the word's “in the
interests of the general public” were wider in scope, he thought, if the
amendment was accepted, the phrase “public order, morality or health”
could be safely omittedh

The editor of the Indian Law Review’ and some members of the Calcutta
Bar suggested the insertion of a new clause to^ the effect that the enumeration
of the rights to freedom in the Constitution should not be construed as
denying or diluling other rights retained by the people. This, B. N. Rau
thought, was hardly desirable, for in the absence of a clear definition of
such other rights, questions were likely to be raised about their existence
generating unnecessary speculation and possibly resulting in an increase in
litigation".

Jaya Prakash Narayan proposed the redrafting of the entire article since
he regarded it as “clumsily” drafted; the rights guaranteed were “considerably
taken away” by the restrictive clauses. He suggested that the article should
be split up into two articles, the first providing that, subject to public
order or morality, the citizens would be guaranteed freedom of speech and
expression, freedom of the press, freedom to form associations or unions,
freedom to assemble peaceably and without arms, and secrecy of postal,
telegraphic and telephonic communications. The second of his draft articles
guaranteed freedom of movement to all citizens. Every citizen would have
the right to sojourn and settle in any place he pleased: but restrictions
could be imposed by or under federal law for the protection of aboriginal
tribes and backward classes and the preservation of public safety and peace.
B. N. Rau commented that the first of the new articles proposed by Jaya
Prakash Narayan, in so far as it provided for freedom of speech and
expression, freedom to form associations or unions and freedom to assemble
peaceably and without arms, was virtually the same as the provisions already
contained in the Draft Constitution. The article further sought to provide
for freedom of the press and secrecy of postal, telegraphic and telephonic
communications. On these points B. N. Rau observed:

It is hardly necessary to provide specifically for freedom of the press as
freedom of expression provided sub-clause (a) of clause (1) of article 13

^Comments and Suggestions on the Draft Constitution, Select Documents W, l(i),
■■pp:' 34-5. ■ ■
pp. 36-7.

220

FRAMING. OF INDIA’S CONSTITUTION

will : include freedom of the press. It is also hardly necessary to include
secrecy of postal, telegraphic and telephonic communications as a
fundamental right in the Constitution itself as that might lead to practical
difficulties in the administration of the posts and telegraph department.
The relevant laws enacted by the Legislature on the subject (the Indian Post
Office Act, 1898, and the Indian Telegraph Act, 1885) permit interception
of communications sent through post, telegraph or telephone only in
specified circumstances, such as on the occurrence of an emergency and in
the interests of public safety.

The second article proposed by Jaya Prakash Narayan was substantially
the same as the provisions contained in sub-clauses (d) and (e) of clause (1)
of article 13 of the Draft Constitution; but it confined the restrictions which
might be imposed on the exercise of the right to freedom of movement and
to sojourn and settle in any place, to restrictions for the protection of
aboriginal tribes and backward classes and the preservation of public safety
and peace; and it also sought to confer power only on the Union Parliament
to impose such restrictions. The expression “preservation of public safety
and peace”, B. N. Rau thought, would not be sufficiently comprehensive as
it might be necessary to impose restrictions in the interests of morality and
public health (for example, for the suppression of immoral traffic, prevention
cf contagious diseases, etc.). Further, it might also be necessary to impose
restrictions on persons in mental hospitals or in prisons — subjects in the
State List or the Concurrent List. The power to impose such restrictions
by legislation could not properly be taken away from the States'.

In the October 1948 reprint of the Draft Constitution, the Drafting
Committee recommended certain changes. These changes proposed the
replacement of the words “or undermines the authority or foundation of the
State” in clause (2) by the words “or undermines the security of or tends
to overthrow the State” ; of the words “in the interests of the general public”
in clause (4) by the words “in the interests of public order or morality”;
of the words “in the interests of any aboriginal tribe” in clause (5) by the
words “in the interests of any Scheduled Tribe”; and of the words “in the
interests of public order, morality or health” in clause (6) by the words
“in the interests of the general public”-

While introducing the Draft Constitution for consideration in the
Constituent Assembly on November 4, 1948, Ambedkar referred to the
criticism that draft article 13 was “riddled with so many exceptions that
the exceptions had eaten up the rights altogether” and observed :

In support of every exception to the fundamental rights set out in the Draft
Constitution one can refer to at least one judgment of the United States
Supreme Court. It would be sufficient to quote one such judgment of

^Comments and Suggestions on the Draft Constitution, Select Documents IV,
l(i), pp. 37-9.

FUNDAMENTAL RIGHTS

221

the Supreme Court io justification of the limitation on the right of free
speech contained in article 13 of the Draft Constitution. In Gitlow vs\
New York in which the issue was the constitutionality of a New York
“criminal anarchy” law which purported to punish utterances calculated to
bring about violent change, the Supreme Court said :

It is a fundamental principle, long established, that the freedom of
speech and of the press, which is secured by the Constitution, does not
confer an absolute right to speak or publish, without responsibility,
whatever one may choose, or an unrestricted and unbridled licence that
gives immunity for every possible use of language and prevents the
punishment of those who abuse this freedom.

Ambedkar added ;

What the Draft Constitution has done is that instead of formulating
fundamental rights in absolute terms and depending upon our Supreme
Court to come to the rescue of Parliament by inventing the doctrine of
police power, it permits the State directly to impose limitations upon the
fundamental rights. There is really no difference in the result. What one
does directly the other does indirectly. In both cases, the fundamental rights
are not absolute\

When the article was taken up for consideration on December 1, 1948.
more than a hundred amendments were proposed. Of those that were
ultimately accepted by the Assembly, the one moved by Mihir Lai
Chattopadhyay sought the omission of the words “subject to the other
provisions of this article” at the beginning of clause (1) on the ground that
they were unnecessary^ Munshi proposed that clause (2) be redrafted so
as to omit the word “sedition” and replace the words “undermines the
authority or foundation of the State” by the words “undermines the security
of, or tends to overthrow, the State”. The object of the amendment was
to do away with the word “sedition” which was of varying importance
and which, as used in the “notorious section 124- A”" of the Indian Penal
Code, had been the bane of freedom fighters in pre-independence India, and
to put in other words which were considered “the gist of an offence against

A, Deb.. Vol VII, pp. 40-1.
p. 713.

^Section 124-A has the marginal heading “Sedition” and read: “Whoever by
words, either spoken or written, or by signs, or by visible representation, or otherwise,
brings or attempts to bring into hatred or contempt, or excites or attempts to excite
disaffection towards the Government established by law in India, shall be punished
with imprisonment for life, to which fine may be added, or with Imprisonment which
may extend to three years, to which fin^ may be added, or with fine.

Explanation ^ The expression ‘disaffection’ includes disloyalty and all feelings
of enmity.

Explanation 2: Comments expressing disapprobation of the administrative or
other action of the Government without exciting or attempting to excite hatred,
contempt or disaffection, do not constitute an offence under this section,”

222

FRAMING OF INDIA’S CONSTITUTION

the State”. The amendment in effect meant that an attack on the Government
could not be made an offence under the law except when the freedom of
speech was so exercised as to tend to overthrow the State itself or otherwise
undermine its security \ Thakurdas Bhargava proposed the insertion of the
word “reasonable” before the word “restrictions” in clauses (3) to (6) so as
to instal the Supreme Court in the position of the ultimate arbiter of the
liberties of the people. The insertion of the word “reasonable”, Bhargava
thought, would be like putting “the soul” in an otherwise “lifeless- article”.
It would prevent the executive and the legislature from playing with the
rights of the people and would empower the courts to see whether a particular
Act was in the interests of the public and whether any restrictions imposed
were “reasonable”. Further, Bhargava emphasized that the words “affect
the operation of any existing law or” in clauses (2) to (6) might create
the apprehension that by virtue of draft article 13“ the existing laws might
remain on the statute book despite their being inconsistent with the
fundamental rights and despite the general provision in draft article 8.
To meet Bhargava’s argument and to clarify the position beyond any
shadow of doubt, Ambedkar accepted his amendment with an addition
providing that existing laws would be saved only in so far as they imposed
reasonable restrictions. Ambedkar further proposed (i) that clause (6X
after the words “in particular” should be recast thus —

nothing in the said clause shall affect the operation of any existing law m
so far as it prescribes or empowers any authority to prescribe, or prevent
the State from making any law prescribing or empowering any authority
to prescribe, the professional or technical qualifications necessary for
practising any profession or carrying on any occupation, trade or business.
This would clarify that the clause applied not only to future legislation
but also the continuation of existing laws prescribing professional or
technical qualifications; (ii) that the words “the general public” being
inappropriate in clause (4) be replaced by the words “public order or
morality”; (iii) that the words “aboriginal tribe” in clause (5) be replaced
by the words “Scheduled Tribe” as the Committee on Tribal Areas favoured
the term “Scheduled Tribe”; and (iv) that the words “public order, morality
or health” in clause (6) be replaced by the words “the general public”,
for the former were “quite inappropriate in the particular clause”'. In
addition to proposing these changes, Ambedkar also accepted the amendments
moved by Chattopadhyay, Munshi and Bhargava.

While several members came forward to welcome the article as “the most
important”, “the very life of the Draft Constitution”, “the charter of
liberties”, “the crux of fundamental rights” etc., and almost unanimously

*C. A D^5., VoL VII, p|). 730-1.

^Coiresponding provision in the Constitution: article 13,

X. A. Deb., Vol. VII, pp. 735-42, 744 and 746,

FUNDAMENTAL RIGHTS

223

hailed Munshi’s amendment to delete the controversial word '“^sedition”, the
main problem that continued to loom large and around which most of the
discussion in the Assembly ■ still revolved, remained that of the advisability
of retaining, further diluting or altogether dropping, the restrictive clauses
(2) to (6). The view that the restrictive clauses rendered the general provision
guaranteeing free enjoyment of the right nugatory and should, therefore,
be deleted, was forcefully advocated by Damodat Swaroop Seth, Mehboob
AM Baig, Hukam Singh, Bhupinder Singh Mann, Syed Karimuddin, Amiyo
Kumar Ghosh, Lakshminarayan Sahu and H. J. Khandekar. They were
opposed to the attempt to spell out expressly the police powers in the
Constitution instead of making the judiciary the arbiter in cases of conflict
between the fundamental right of an individual and a restrictive action of
the State. Thus, Hukam Singh said that while clause (1), standing by
itself, gave “constitutional protection to the individual against the coercive
power of the State”, clauses (2) to (6) took away the soul from the protective
clauses.

The very object of a Bill of Rights is to place these rights out of the
influence of the ordinary Legislature, and if, as under clauses (2) to (6)
of article 13, we leave it to this very body, which in a democracy is nothing
beyond one political party, to finally judge when these rights, so sacred
on paper and glorified as fundamentals, are to be extinguished, we are
certainly making these freedoms illusory.

Bhupinder Singh Mann felt that every clause was being hemmed in by
so many provisos that what was being given by one hand was being taken
away by the other. Speaking in a similar vein, Karimuddin observed that
clauses (2) to (6) “were very dangerous” and robbed the people of the
only guarantee which could make them secure. Unless these clauses were
deleted, he added, minorities could not consider the article a “sufficient
protection for them”k

K. T. Shah, while he did not ask for the total deletion of the restrictive
clauses, felt that the article as drafted “would amount more to a negation
of freedom than the promise or assurance of freedom” since the exceptions
were much more emphasized than the positive provision and what was given
by one right hand seemed “to be taken away by three or four or five left
hands”, thereby rendering the article nugatory. Shah suggested an amendment
laying greater emphasis on the rights and diluting the restrictive clauses".

The more important and numerically larger school of thought in the
Assembly, however, held the view that the restrictive clauses were not only
essential but were dictated by the needs of the time. The protagonists of this
view included Govind Das, K. Hanusnanthaiya, Brajeshwar Prasad, SMbban
Lai Saxena, Algu Rai Shastri, Deshbandhu Gupta and T. T. Krishnamachari.

^C. A. Deb,, Voi. VII, pp. 732-4, 749-50 and 756-7.
p. 714.,^

224

FRAMING OF INDIAN'S CONSTITUTION

They felt that by virtue of its position the authority to make the laws
limiting the operation of fundamental rights should appropriately vest in
the Legislature and not in the judiciary. Hanumanthaiya observed that no
man who belived in violence and who sought to upset the State and society
by violent methods could be allowed to have his way under the cover of
fundamental rights; and it was for that reason that the Drafting Committee
had thought it fit to limit the operation of these rights. Since courts could,
in the very nature of things, only interpret the law and not change it and
since law ought to keep pace with the changes taking place in the social
and political conditions and in the temper and psychology of the people, it
was necessary to vest the power of limiting the operation of fundamental
rights in the Legislature. Brajeshwar Prasad agreed that the technique and
methods widely employed by modern lawbreakers could not be effectively
checked by judicial institutions and ordinary laws of the nineteenth century,
and the State must, therefore, be vested with wide discretionary powers
if the parasitical class that thrives on profit and exploitation is to be
liquidated and the communists are to be checked from endangering the
safety and existence of all the institutions of our modern life.

Individual freedom, he felt, was risky and a sheer illusion in a community
where more than 80 per cent of the people were sunk in the lowest depths
of poverty, illiteracy, communalism and provincialism.

Forcefully defending the restrictive clauses (2) to (6), Brajeshwar Prasad
added that the legacy of centuries of backwardness and foreign misrule could
not be wiped out by one stroke of the pen. Defending the vesting of powers
to limit fundamental rights in the Legislature from a different angle, Algu
Rai Shastri said that those who would sit in the Legislature, being the
chosen representatives of the people, would impose only such restrictions
as were in the interests of the people; and he could see no reason to apprehend
that any restrictions would be imposed merely to destroy the liberties of
the people\

T. T. Krishnamachari explained that in the context of the situation in
which the country was placed, it was impossible to envisage rights to
freedom that would not be abridged in order to maintain the stability of
the State which had already been put to a lot of travail in the first eighteen
months of its existence after partition. The special powers, he said, were
needed by the Government not merely to meet the refugee problem and
the various forces which were inimical to the State but also the various
economic problems that faced the country. In his opinion, draft article 13
really epitomized the attempt of the Drafting Committee to strike the golden
mean between two extreme notions ofoundiluted rights and an all-powerful
State. Krishnamachari envisaged for India a future where the State was
going to interfere more and more in the economic life of the people, not

A, Deb,. Vol VII, pp. 754, 760-1 and 767.

fundamental rights

225

for the purpose of abridging the rights of individuals but for bettering their
lot. He said that as modified by the three amendments of Ambedkar and
the amendments of Munshi and Bhargava that were accepted by him, the
article represented “a fairly reasonable enumeration of our rights and a
fairly conservative abridgement of those rights”'.

Thj only other points of significance raised during the debate on draft
article 13 were; (i) H. V. Kamath’s amendment, supported by some other
members, to incorporate a new sub-clause in clause (1) to guarantee the
right to keep and bear arms subject to restrictions imposed by law in the
interests of public order, peace and tranquillity*; (ii) Jaipal Singh’s demand
for a clarification whether the advisory councils or the regional councils
envisaged in the recommendations of the two tribal sub-committees would
operate outside the so-called scheduled areas; and if they did not, what
was going to happen to the millions of adivasis who were living outside
those scheduled areas*; (iii) the suggestion emphasized by several
members — Damodar Swaroop Seth and K. T, Shah amongst them— specifically
and separately to mention the “freedom Of the press” in clause (1); and
(iv) the constitutional assurance sought by some Muslim members—Mohamed
Ismail and Hasrat Mohani — that the personal law of a community would
not be disturbed by the State*.

Ambedkar, who replied to the debate. ■ made particular reference to
Kamath’s amendment regarding the right to bear arms and to the queries
raised by Jaipal Singh in regard to the adivasis: Regarding the former, he
said it would indiscriminately give every citizen, including the criminal tribes
and habitual criminals, the right to possess arms. While admitting that the
Congress party had been agitating for this right, Ambedkar added that
it should not be forgotten that the circumstances had since changed very
much and that in independent India, what needed to be insisted upon was
not the right of an individual to bear arms but his duty to bear arms when
the stability and security of the State happened to be endangered. As to
Jaipal Singh’s queries, he replied that as the Constitution stood, a member
of a scheduled area going outside the scheduled area or tribal area would
not be entitled to carry with him the privileges that he was entitled to
while residing in such an area. Referring to the question of the Tight to
freedom of the press, he thought that no special mention of it was at all
necessary since the press also consisted of individuals— the editors or
managers etc. — and it had no special rights which were not given or
, which were not to be exercised by the citizens in their individual capacity.
Rejecting the demand for a constitutional assurance of non-interference
in the personal lav/ of any community as an “impossible” proposition, he

*C. A. Deb., Vol. VII, pp. 770-4, . .

7Wd., pp. 718-21.

’‘Ibid., pp. 752-3. . '

Ubid., pp. 712, 715, 721-5, 758-60.

226

FRAMiHG. OF... INDIA'S CONSTITUTION

Tcf erred ;to, the directive , principle in. draft article ' 35" ; which enjoined the
State to strive to bring about a uniform civil code. If the demand was
accepted, he said, it would disable the Legislatures from enacting any social
measures ■ whatsoever and the. cO‘untry would come to a standstill in .social
in alters, particularly when religion in India- covered practically ■ .every aspect
of life. However,, he explained that aU that the State was claiming in that
matter was the power to legislate, that .there was no obligation on -the. State
to do away with personal laws and that there need be no apprehension that
merely because it had 'the power, the State would ‘immediately proceed to
execute or enforce that power” in a manner considered objectionable by any
community". ' ,

Put to vote, the amendments of Chattopadhyay, Munshi and Bhargava— all
accepted by Ambedkar earlier — and the amendments moved by Ambedkar
himself were adopted by the Assembly and the rest were rejectedi

The article, as so amended, was renumbered by the Drafting Committee
at the stage of revision as article 19 of the Constitution :

(1) All citizens shall have the right—

(a) to freedom of speech and expression;

• , (b) to assemble peaceably and without arms:

(d) to move freely throughout the territoiy of India;

(e) to reside and settle in any part of the territory of India;

(f) to acquire, hold and dispose of property ; and

• (g) to practise any profession, or to carry on any occupation, trade oi

business.

(2) Nothing in sub-clause (a) of clause (1) shall affect the operation of
any existing law in so far as it relates to, or prevent the State from making

• any law relating to, libel, slander, defamation, contempt of court or any
matter which offends against decency or morality or which undermines the
security of, or tends to overthrow, the State.

(3) Nothing in sub-clause (b) of the said clause shall affect the operation
of any existing law in so far as it imposes, or prevent the State from
making any law imposing, in the interests of public order, reasonable
restrictions on the exercise of the right conferred by the said sub-
clause,

(4) Nothing in sub-clause (c) of the said clause shall affect the operation
of any existing law in so far as it imposes, or prevent the State from
making any law imposing, in the interests of public order or morality,
reasonable restrictions on the exercise of the right conferred by the said
sub-clause..

^Corresponding provision in the Constitution: article 44.

A. Deb., VoL VII, pp. 779-83.

Hbid., pp. 783-9.

FUNDAMENTAL RIGHTS

227

■,,'■ '(5) Nothing iO' stib-clauses (d), (e) and (f) of the said clause shall affect the
- ; operation of any existing law in so far as it imposes,, or prevent the State ■
,,from making any law imposing, reasonable restrictions on the exercise of
any of the rights conferred, by the said sub-clauses either in the interests
of the general public or for the protection of the interests of any Scheduled
' Tribe.

(6) Nothing in sub-clause (g) of the said clause shall affect the operation
of any existing law in so far as it imposes, or prevent the vState from
making any law imposing, in the interests of the general public, reasonable
restrictions on the exercise of the right conferred by the said sub-clause
and in particular nothing in the said sub-clause shall affect the operation of
any existing law in so far as it prescribes or empowers any authority to
prescribe, or prevent the State from making any law prescribing, or
empowering any authority to prescribe, the professional or technical
qualifications necessary for practising any profession or carrying on any
occupation, trade or business.

■ NOTE ON AMENDMENTS

Clause (2) (Restrictions on the right to freedom of speech and expression):

(i) Certain difiSculties were brought to light by judicial decisions and
pronouncements in regard to freedom of speech and expression. As adopted
by the Assembly, this right was subject to the operation of any existing law
relating to slander, defamation, contempt of court or any matter which
offended against decency and morality or which tended to overthrow the
State. Some courts had held that the right to freedom of speech was
sufficiently comprehensive as not to render a person culpable even if he
advocated murder and other crimes of violence. The Constitution (First
Amendment) Act, 1951, amended article 19(2) by laying down that the right
to freedom of speech would be subject to the operation of laws imposing
reasomble restrictions in the interests of the security of the State, friendly
relations with foreign States, public order, decency or morality, or in
relation to contempt of court, defamation or incitement to an offence. The
effect was that while greater powers were conferred on the Legislatures to
impose restrictions on the right of freedom of speech and expression, the *
reasonableness of such restrictions was made a matter for judicial review.
This amendment came into force on June 18, 1951.

(ii) Under the Constitution (Sixteenth Amendment) Act, 1963, the
‘‘sovereignty and integrity of India” was also added as one of the grounds
in the interests of which Legislatures -^ould impose reasonable restrictions
on freedom of speech and expression.

(5) (4) (Restrictions on the right to assemble peaceably and

without arms and the right to form associations or unions):

The Constitution (Sixteenth Amendment) Act, 1963, amended clauses (3)

,228

FRAMING OF INDIA’S CONSTITUTION

and (4) of article 19, making it clear that the State could pass' laws 'imposing
reasonable restrictions on the exercise of the right to assemble peaceably and
without arms and on the right to form associations or unions, if such
restrictions were in the interests of the sovereignty and integrity of India.
This amendment came into force on October 5, 1963.

Clause (6) (Right to practise any profession, or to carry on any occupation,
' trade or business):

The Constitution (First Amendment) Act, 1951, made an addition to
article 19(6)' which laid dov/n that it would be open to the State to make
a law relating to the carrying on by the State, or by a corporation owned
or controlled by the State, of any trade, business, industry or service, whether
to the exclusion, complete or partial, of citizens or otherwise. This
amendment came into force on June 18, 1951, and made it expressly clear
that the State could undertake schemes of nationalization.

Protection in respect of conviction for offences {Article 20)

The principle of guaranteeing to every person— citizen or alien — protection
against ex post facto laws, double jeopardy and self-incrimination was
provided for in Munslli’s draft. Ambedkar’s draft also contained a provision:
‘‘No Bill of attainder or ex post facto law shall be passed”'. The
Sub-Committee on Fundamental Rights considered the subject on March 28,
1947, and accepted Munshi’s draff in the following form :

(1) No person shall be convicted of crime except for violation of a law
in force at the time of the commission of the act charged as an offence,
nor be subjected to a penalty greater than that applicable at the time of
the commission of the offence.

(2) No person shall be tried for the same offence more than once nor be
compelled in any criminal case to be a witness against himself.

The provision proved non-controversial. It was adopted by the
siib-CGmmittee on April 15, 1947, and incorporated in its report to the
Advisory Committee as clause 27k When the Advisory Committee took up
this clause for consideration on April 22, 1947, Rajagopalacliari remarked
that it was not necessary to put in the usual principles of criminal law, which
the clause embodied, as fundamental rights in the Constitution. Munshi

hMuoshi’s draft, article XII, clauses (1) and (2); Ambedkar’s draft, article l!(l)
(13). Select Documents 11, 4(ii) (b) and (d), pp. 78-9. 87.

^Minutes, March 1%, 19A1. Select Documents II, 4(iii), p, 129.

®Draft Report, Annexure, clause 28. In his explanatory notes on clauses, B. N.
Rau pointed out that sub-clause (1) w^s based on section 9(3) of article I of the
U.S. Constitution, section 15(5) of the Irish Constitution and article 116 of the
Weimar Constitution, while sub-clause (2) was based on the Fifth Amendment (179 1)
of the U.S. Constitution., Select Documents 11, 4(iv), p. 141. •

^Minutes,. April 15, 1947 and Report, Annexure, clause 21, Select Documents ll,
4(vii) and (viii), pp. 166, 174.

FUNDAMENTAL RIGHTS

22,9

replied that, while it was true that generally criminal laws were passed by
the Legislature, the clause was intended against a specific grievance. An
act which was, not an offence at the time it was committed might after six
months or so be regarded as an offence by a Legislature for ''political
.vendetta”. Without further discussion, the Advisory Committee adopted the
clause as 'recommended by the sub-committee and embodied it as clause 20
of the annexure- to its, interim report . to the Constituent Assembly'.

The clause was taken up foi consideration and adopted by the Assembly
on May 2, 1947, without any amendment being moved and without any
discussion". In reproducing it as clause 26 of his Draft Constitution B. N.
Ran made certain verbal modifications in sub-clause (1) and recommended
that In the second part of sub-clause (2), the protection against being
compelled to be a witness against oneself should be qualified by the
provisions of section 132 of the Indian Evidence Act, 1872, by a suitable
addition of wordsh He explained that while depriving a witness of the right
to refuse to answer questions on the ground that the answer would
incriminate him, section 132 of the Indian Evidence Act also provided
that no such answer would subject him to any criminal charge except
prosecution for giving false evidence. The Act thus had the merit of
securing-the benefit of evidence in the cause of justice as also the benefit
of protection to a witness against incrimination. In the absence of a saving
provision of this kind, the clause might lead to failure of justice, particularly
in criminal cases*.

The Drafting Committee considered clause 26 of the Constitutional
Adviser’s Draft Constitution on November 1, 1947, and held that the
intention of the second part of sub-clause (2) was only to prohibit compulsion
of an accused to be a witness against himself and if that intention was made
clear, the additional words proposed by the Constitutional Adviser would
not be necessary. The committee split up sub-clause (2) into two independent
clauses— the former dealing with double jeopardy and the latter with

^Proceedings, April 22, 1947 and Interim Report, Annexure, Select Documents II,
6(iv) and 7(i), pp. 276, 298.

■ A, Deb.. VoL IH, p. 519.

^Section 132 of the Indian Evidence Act, 1872, reads:

•'A witness shall not be excused from answering any question as to any matter
relevant to the matter in issue in any suit or in any civil or criminal proceeding,
upon the ground that the answer to such question will criminate, or may tend
directly or indirectly to criminate, such witness, or that it will expose, or tend
directly or indirectly to expose, such witness to a penalty or forfeiture of any
kind:-'

Provided that no such answer, which a Vitness shall be compelled to give, shall
subject him to any arrest or prosecution, or be proved against him in any
criminar proceeding, except a prosecution for giving false evidence by such

■ ■ answer.’*' ' ■ *

^Draft Constitution, October 1947, clause 26, and B. N. Rail’s notes on clauses.
Select Documents lllr I (i) and (ii), pp. 11-2,200

230

FRAMING OF INDIA’S CONSTITUTION

self-incrimination'. So amended, the provision appeared in ■ the Draft
Constitution as article 14: ■ '

(1) No person, shall be convicted of any offence except for' violatio,n of a
law in .force at the time of the .commission of the act charged as an offence,
nor be subjected to a penalty greater than that which might have been
inflicted under the law at the time of the commission of the offence.

(2) No person shall be punished for the same offence more than once.

(3) No person accused of any offence shall be compelled to be witness
against himself.

Draft article 14 was discussed in the Assembly on December 2, 3 and 6,
1948. A few amendments were moved. The one proposed by Thakurdas
Bhargava was that in clause (1) the words ‘‘under the law at the time of
the commission” should be replaced by the words “under the law in
force at the time of the commission” since the two expressions had different
meanings and the expression used in the previous part of the article was
also “law in force”. T. T. Krishnamachari suggested an amendment to the
effect that clause (2), instead of merely saying that no person would be
punished for the same offence more than once, should provide that no person
would be prosecuted and punished for the same offence more than once.
Justifying his suggestion, Krishnamachari said that several members of the
Assembly had pointed out to him that the clause as drafted might probably
result in the position that a Government official who had been dealt with
departmentally and punished could not be prosecuted and punished by a
court of law if he had committed a criminal offence; per corUra if a
Government official had been prosecuted and sentenced to imprisonment
or fined by a court of law it might preclude the Government from taking
disciplinary action against him^

Naziriiddin Ahmed moved two amendments : the first of these suggested
that no person would be subjected to a penalty greater than or other than
that which might have been inflicted at the time of the commission of the
offence. The second amendment proposed that the provision forbidding the
punishment of any one for the same offence more than once should be made
subject to section 403 of the Criminal Procedure Code so that, in case there
was a lacuna in a trial, it would be possible to order a fresh triaP.

Syed Karirauddin proposed the addition of a new clause protecting “the
right of the people to be secure in their persons, houses, papers and effects

^Minutes, November 1, 1947, Select Documents III, 5, p. 330.

‘Draft Constitution prepared by the Drafting Committee, February 194S, 5^/ecl
Documents III, 6, p. 523. ■

A. Deb., VoL VII, pp. 789-90 and 795.

'‘Sub-section (1) of section 403 of the Code of Criminal Procedure provides: “A
person who has been once tried by a court of competent jurisdiction for an offence
and convicted or acquitted of such offence, shall, while such conviction or acquittal
remains in force not be liable to be tried again for the same offence.’"

••FUNDAMENTAL RIGHTS

231

against .unTeasonable searches .and seizures” and- laying down that
No- warrants ■ shall issue but . upon- probable cause supported by oath ■■or
" affirmation and' particularly , describing the place' to be searched ' and. the
persons or things to be seized.

• He said That his amendment was an important one, particularly in 'View
of the many arrests of the members of the minority community that were
being made without warrants and many searches of their houses that were
being carried out without justificationh
Ambedkar, in a brief reply to the debate, accepted the amendments moved
by Krishnamachari, Tiiakurdas Bhargava and Karimuddin. Regarding
Karimuddin’s amendment, he said that since it was ‘"perfectly possible” that
the Legislatures of the future might abrogate the provisions of the Criminal
Procedure Code, it was desirable to place these important provisions beyond
the reach of Legislature by including them in the Constitution. When
put to vote, however, the amendment moved by Karimuddin as also those
moved by Naziruddin Ahmed were negatived while those moved fay
Bhargava and Krishnamachari were adopted. Tlie draft article, as amended,
was included in the Constitutionl Later, at the revision stage the Drafting
Committee renumbered it as article 20 :

(1) No person shall be convicted of any offence except for violation of a
law in force at the time of the commission of the act charged as an offence,
nor be subjected to a penalty greater than that which might have been
inflicted under the law in force at the time of the commission of
the offence.

(2) No person shall be prosecuted and punished for the same offence more
than once.

(3) No person accused of any offence shall be compelled to be a witness
against himself.

Protection of life and personal liberty {Article 21)
Protection against arrest and detention {Article 22)

Mimshi’s draft, in its chapter on rights to freedom, had provide4 •

No person shall be deprived of his life, liberty or property without due
, process of law. ,

The other provisions, which in effect elucidated the “due process” clause,
had guaranteed to every person the right to be informed, within twenty-four
hours of his deprivation of liberty, by what authority and on what grounds
the action was being taken. They had laid down further that no person
would be subjected to prolonged detention preceding trial, to excessive bail
or unreasonable refusal of bail, to inhuman or cruel punishment or to

A. Deb,, VgL VII, pp. 789-92 and 794.

Hbid., m 795-7 and 840-2.

FRAMING '/OF- INDIA’S -CONSTITUTION

232

.denial ;of .adequate safeguards and . proper procedure^ Ambedkar’s ' draft
also^ had'included-a provision that the.' State- should 'not deprive any person
of: life, liberty .or property . without the “due process of Iaw”l
The Sub-Committee on Fundamental Rights discussed the subject on March
25v26- and 29, 1947, and included in its draft report Two clauses, 11 aiid 29 :

: , 11 . No person shall be -deprived of his life, liberty or property witho'ut due
• .process of law.

29 . No person shall be subjected to., prolonged" detention preceding, trial,

to excessive bail, or, unreasonable refusal thereof, or to inhuman -or cruel

pmilshmenf.

. . Commenlipg' on the: draft report,. B. N. Ran .pointed out that clause 11
had been adapted from the Fifth and Fourteenth Amendments of the
Constitution of the United States, while clause 29 was based on article 1
of Lauterpacht’s “An International Bill of the Rights of Man” as also on
the Sixth and Eighth Amendments of the Constitution of the United States*.
Forty per cent of the total litigation in the United States Supreme Court
during the preceding half-century, he said, had centred round the
interpretation of the expression “due process” of which it had been said
that in the last analysis it meant exactly what the courts said it meant
in any particular case^ No other definition was possible. The result of
borrowing such a clause and giving it retrospective effect, making it applicable

^Munshi's draft, articles v(l)(e) and v(4) and article XII (3), Select Documents II,
4(ii) (b), pp. 75, 79.

^Ambedkar’s draft, article 11(1X2). Select Documents 11, 4(ii) (d), p. 86.

^Minutes and Draft Report of the Sub-Committee, Annexure, clauses 11 and 29.
Select Documents 11, 4(ii!) and (iv), pp. 119-20, 122, 132, 139, 141. The provision
regarding the right to be informed of the authority and grounds of deprivation of
one’s liberty within twenty-four hours was omitted in view of the “due process of
law” provision — clause 11.

*Notes and comments on the Draft Report, Select Documents II, 4(v), p. 149.

Tn the Fiftli Amendment to the Constitution of the United States, it is

declared that no person shall be deprived of life, liberty or property without due

process of law; and in the Fourteenth Amendment, there is a similar declaration
applying to the States: “Nor shall any State deprive any person of life, liberty or
property without due process of law.” A vast volume of case law has gathered

round this “due process” clause, of which it has been said that it is “the most

important single basis of judicial review today”. At first it was regarded only as a
limitation on procedure and not on the substance of legislation; but it has now been
settled that it applies to matters of substantive law as well In fact, the phrase
“without due process of law” appears to have become synonymous with “without
just cause” the court being the judge of what is “just cause”; and since the object
of most legislation is to promote the public welfare by restraining • and regulating
individual rights of liberty and propert^t the court can be invited, under this
clause, to review almost any law. The court has upheld laws providing for compulsory
vaccination (1905); for compulsory sterilization of mental defectives (1927); for
commitment of persons with a “psychopathic personality” (1940); but not a law
forbidding the use of shoddy in file manufacture of mattresses (1926), nor one
requiring every pharmacy to be owned by a licensed pharmacist (1928). The usual

FUNDAMENTAL ' RIGHTS

233

Qven-to pre-constitutio-n, laws, was ■lik-ely to be-. a vast, flood of ■ litigation.
Tenancy "laws,: laws xelatiiig ;to inoney-knding, laws .to relieve debt, -laws
to prescribe minimum wages, laws' to prescribe maximum hours of work,
would all be liable to be challenged. To get over the difficulty, B. N. Rau
suggested an additional clause empowering the State to delimit by law the
guarantees for private .property with a view to reconciling -their exercise with
the exigencies of the .common goodh

Wllen the sub-committee met on April 14 and 15, 1947, to consider the
draft report in the light of the comments received, it reaffirmed
its recommendation for incorporating both clauses 11 and 29 in the
Constitution. The final report of the sub-committee accordingly reproduced
them as clauses 12 and 28 without any modification, except that the ^fiegai
equality” provision- was also combined with the former'.

When the clauses came up for consideration before the Advisory Committee
on April 21 and 22, 1947, clause 28 was deleted without any discussion^
presumably because the committee felt that the expression “due process
of law” in clause 12 was wide enough to cover within its scope the contents
of clause 28.

Commenting on clause 12, Alladi Krishnaswami Ayyar explained the
uncertainties of interpretation to which the phrase “due process of law”
would probably give rise. The expression was taken from American law
where it had a chequered history. Originally it was confined to matters of
procedure. Later it was extended to substantive rights and when judges
changed they gave different interpretations to the phrase. He said that
in President Roosevelt’s New Deal legislation one set of judges in particular
cases gave one interpretation and another set of judges gave another
interpretation, some in the direction of social utility and some others in the
direction of individual property. He added that since the American courts

issue in such cases is whether what is called the “police power” of the State— in
other words, the inherent power of every State “to prescribe regulation^ to
promote the health, peace, morals, education and good order of the people” —
justifies the particular law under consideration. Since there is no certain criterion
in these matters, the court’s verdict may vary from time to time. (B. *N. Rau’s
Constitutional Precedents, Third Series, 1947, p. 17.) Select Documents II, 2(i),
pp. 29-30. ^

^Notes and comments on the Draft Report, Select Documents II, 4(v),
pp. 151-2.

^he “legal equality” provision continued to be coupled with the “protection of
life and liberty” provision through various stages thereafter until, at the revision
stage of the Constitution, the Drafting Committee separated and renumbered it as
an independent article (article 14 of the Constitution). under ‘Right to Diuality’,
article 14..,.' ,. ^ ■

®Sub-Committee, Minutes and Report, Annexure, clauses 12 and 28. Select
Documents 11, 4(vil) and (viii), pp. 164, 166, 173, 174.

^Advisory Committee Proceedings, April 21 and 22, 19 Al, Select Documents 11,
6(iv), p.,'276. ' ■■ -.-"VV:

234

FRAMING OF INDIA’S CONSTITUTION

had not given a nnaniimoiis interpretation of the phrase-— 'at' one Time confining
it to procedure, at another stage extending it to rights, and' at a- third stage
saying that ■ it ' would be subject to public 'utility — the sub-comiilittee "had
assumed that Indian courts would "‘follow the expression”. But all the same,
he cautioned against the danger of its standing in the way of what might be
called expropriatory legislation; if there was a set of judges who were
conservative in regard to property, they might put a wide construction on
the phrase so as to hamper social legislation; and another set of judges
imbued with modern ideas might put a more ' liberal ' interpretation. . He
concluded his explanation with the remark that he himself was not against
the inclusion of the phrase; but he wanted the committee to be alive to its
implications\

This view evoked strong opposition to the use of the phrase “due process
of law” from Govind Ballabh Pant who said that the expression should be
avoided as it was ambiguous and capable of divergent interpretations ; its
retention might mean that the future of the country was to be determined
not by the collective wisdom of the representatives of the people but by the
whims and vagaries of lawyers elevated to the judiciary. It was necessary
not to fetter the power of the Legislatures to pass laws empowering the
executive to detain, for short periods, persons who created trouble leading
to disruption of communal harmony and law and order. He was particularly
concerned with the effect of the words on social legislation. It was necessary,
he said, that the Legislatures should retain the power of passing tenancy
laws and measures for the acquisition of private property for public purposes
without being obliged to pay compensation at market rates. In the United
Provinces, he explained, they were contemplating the abolition of zamindari
(a feudal system of land tenure) and it was possible that there might be a
law to the effect that the more wealthy zamindars might be paid compensation
at the rate of ten times their annual value and the smaller zamindars at
forty times. These zamindars might go to the court and say that payment
must be made on the basis of the market rate ; and the. law might hang
on for years for the Supreme Court to give a decision. “We do not want
such a thing to happen”, he said.

Pant’s view in regard to limiting the right to liberty did not find many
sympathizers, the feeling of the members, in Ambedkar’s words, being that
there was no case for giving a carte blanche to the Government to arrest,
except in a grave emergency, any person without “due process of law”. There
was however considerable support for the arguments advanced by Pant
regarding legislation dealing with property and tenancy. Ambedkar agreed
that these matters could be covered bj a specific proviso, although, in his
opinion, the “due process” clause could not prevent the Legislature from

Advisory' Committee Proceedings, April 21 and 22, 1947. Select Documenis II,
6(iv), pp. 240-1. ' : :

FUNDAMENTAL- RIGHTS '

235

passing tenancy legislation, and a separate danse' already existed for
legislation for' the acquisition, of property^

At this stage, as a possible way out of the practical difficulties created by
coupling the 'life and liberty” provision with the: '"‘'property” provision,
K. M. Panikkar suggested the omission of the latter from the text. Drawing
a distinction between the “right to life and liberty” on ■'the one hand and the
“right to property” on the other, he said that , while the former should be
regarded as “absolutely sacred”, not subject to any other restriction except
that of public order and tranquillity, the latter should be guaranteed only
subject to legislation. Though Pant remained unconvinced, this compromise
suggestion generally appealed to the members and, with. Munshi, Ambedkar
and Rajagopalachari supporting it, the suggestion was finally adopted by the
committee and the “due process” provision, after the omission of the word
"property”, was incorporated in clause 9 of the report submitted to the
Constituent Assembly ^

Taken up for consideration in the Assembly on April 30, 1947, the
provision was adopted without any amendment being moved\ The
Constitutional Adviser, in reproducing it in clause 16 of his Draft Constitution
of October 1947, restricted the scope of the expression “liberty” by adding
the word “personal” before it. He justified the change on the ground that
the word “liberty” by itself might be construed widely unless it was qualified
by the word “personal” ; for example, even price control might be regarded
as interference with liberty of contract between buyer and seller^ The
change had the approval of the Drafting Committee which accepted it at its
meeting on October 31, 1947, despite Munshi’s opposition*. Meanwhile,
during his visit to the United States of America and other countries, B. N. Rau
had discussions with Justice Frankfurter of the United States Supreme Coui't
who was of the opinion that the power of review implied in the “due process”
clause was not only undemocratic (because it gave a few judges the power
of vetoing legislation enacted by the representatives of the nation) but also
threw an unfair burden on the judiciary'. This view was communicated by
B. N. Rau to the Drafting Committee which introduced a far-reaching change
in the clause by replacing the expression “without due process of law” by
tile expression “except according to procedure established by law”. The

^Clause 26: see under ‘Right to Property’, article 31, infra.

® Advisory Committee Proceedings, April 21 and 22, 1947. Select Documents Tl,
^(iv), pp. 243-5.

Mbid„ md Interim Report of the Advisory Committee, Select

Documents If, 7(i), pp. 245-7, 297.

A. Vol. Ill, p. 457. ^ ,

^Select Documents 111, 199.

^Minutes. Also see Draft Constitution. February 1948, f.n. to article 15. Select
Documents III, 5 and 6. pp. 328, 406, 523.

^Report of the Constitutional Adviser on his visit to U.S.A. etc. Select Documents
III, 2, l(ii), p. 218.

236

FRAMING OF INDIA’S. CONSTITUTION

latter expression, which the committee considered more specific in its import,
was borrowed from article 31 of the Japanese Constitution. The text of the
provision, thus recast by the committee, was incorporated in article 15^ of
the Draft Constitution:

No person shall be deprived of his life or personal liberty except according
to procedure established' by law nor shall any person be denied equality
before the law or the equal protection of the law within the territory of
• . Indiah

Draft article 15 evoked a keen controversy regarding the respective merits
of the expressions “due process of law” and “procedure established by law”.
When it came up for consideration in the Assembly on December 6, 1948,
there were about twenty amendments, most of them seeking to replace the
latter by the former or a similar expression. Almost the entire debate
hinged on this controversy, with all the speakers, including Munshi^ favouring
the restoration of the expression “due process of law”. Syed Karimuddin
•and Mehboob Ali Baig pointed out that the use of the phrase “procedure
.established by law” stripped a court of the power to go into the merits and
demerits of the grounds on which a person was deprived of his life or
liberty; a court could not look into the injustice of any law or of a capricious
provision in any law since its function would cease the moment it v/as
satisfied that the “procedure established by law” had been complied with^
Thakurdas Bhargava, explaining the import of the use of the words “without
due process of law” pointed out that if this phrase was used the courts
could go into the question of substantive as well as procedural law ; in
other words, the courts would have the right to go into the question whether
a particular law enacted by Parliament was just or not, whether it was
good or not, and whether or not, as a matter of fact, it protected the
liberties of the people ; and if the Supreme Court came to the conclusion
that any law was unconstitutional, unreasonable or unjust, such a law v/oiild
cease to have effect" . Z. H. Lari expressed the opinion that the essence of
the “due process of law” provision was two-fold. There would first be an
enquiry before a man was condemned, and then there would be a judgment
after trial. On the other hand, if the words “procedure established by law”
were adopted, it would mean that the Legislature was all-powerfuf . He said :
Men as well as assemblies or any mass of people are subject to passing
emotions. . . and in the present state of things, particularly keeping in

^Draft Consfitution, February 1948, article 15, .yee f.n. to the article. Select
Documents III, 6, p. 523.

"C. Vol. VII, pp. 843-5.

Hbid.. p. 846.

*This point was further emphasized by Bhargava and H. V. Pataskar who felt
that in the absence of the “due process” provision the Legislature could be made
use of by the ruling party to pass vindictive legislation against its critics or
opponents.

FUNDAMENTAL RIGHTS

i37

, "view, the. Constitution that we are going to- have, namely a pariiamentary
, government, the Legislature is controlled by a cabinet, which means by
the cxecutiveh

K. M, Munshi emphasized that with the omission of the word “property”
and the word “liberty” qualified by the word “personal”, the “due process
of law” provision had become unexceptionable and no longer vulnerable to
the- difficulties of interpretation to which its counterpart in the United States
was subject; the difficulties of interpretation of the “due process” clause, in
the United States had been in regard to its application to the “property”
provision, and similarly, the word “liberty” was construed widely so as to
cover liberty of contract etc., simply because it had not been qualified by
the word “personal”; Referring to the fear that legislative majorities would
be more anxious to establish social control than to serve individual liberty
and might pass legislation in a hurry to give sweeping powers to the executive
and to the police, he said it was necessary that a proper balance should be
struck between individual liberty and social control This could be done
only if the governments had to go to the conns of law to justify a
particular measure being passed infringing the personal liberty of an
individuar.

Raising his lone voice in support of the retention of the expression
“procedure established by law” as against the “due process” provision,. Alladi
Krishnaswami Ayyar argued that the verdict of three or five gentlemen
sitting as a court of law on what exactly was the “due process” according
to them in a particular case could not be regarded as more democratic than
the expressed wishes of the Legislature or the action of an executive
responsible to the Legislature. In the United States even the minimum wage
law or a restraint on employment had, in certain cases, been regarded as an
invasion of personal liberty. He again referred to the absence of uniformity
in the interpretation of the phrase in the decisions of the United States
Supreme Court. It might prove fairly satisfactory if judges of the Supreme
Court in India did not follow^ American precedents, especially in the early
stages, but moulded Iheir interpretation to suit Indian conditions and the
progress and well-being of the country. He feared that the clause might
prove to be a great handicap for all social legislation, for the ultimate
relationship between employer and labour, for the protection of children
and for the protection of women. In the earlier stages of American history
lawyers ranged themselves on the side of the great trusts and combines and
in favour of corporations which were in a position to pay heavy fees, some-
times in the name of personal liberty, sometimes in the name of property.
He added , ' , ' , ■ v

I trust that the House will take into account the various aspects of this

A. Deb.. Yol, Yll, pp, m5-6. :

~Ibid., pp. S51-2.'

238

FRAMING OF INDIANS CONSTITUTION

question,, the future progress of India,- the well-being and seeurity of the
State, the necessity of maintaining a minimum of liberty, the need for co-
ordinating social control and personal liberty, before coming to a
decision'\

In view of the trend of opinion in the Assembly, Ambedkar suggested
postponement of further consideration of the draft article. The suggestion
was accepted* After a week, on December 13, 1948, when the article was
again taken up, Ambedkar succinctly placed before the Assembly the two
sharply divergent points of view and the difficulties inherent in each of them:
one view was that the Legislature could be trusted not to make any law which
would abrogate the fundamental rights applicable to every individual The
other view was that it was not possible to trust the Legislature; the
Legislature was likely to err, to be led away by passion, by party prejudice
or considerations, and might make a law abrogating a fundamental right of
a citizen* Ambedkar added:

For myself I cannot altogether omit the possibility of a Legislature packed
by party men making laws which may abrogate or violate what we regard
as certain fundamental principles affecting the life and liberty of an
individual. At the same time, I do not see how five or six gentlemen sitting
in the Federal or Supreme Court examining laws made by the Legislature
and by dint of their own individual conscience or their bias or their
prejudices be trusted to determine which law is good and which law is
bad. It is rather a case where a man has to sail between Charybdis and
Scylla and I therefore would not say anything.

All the amendments for replacing the words “procedure established by
law” by the words “due process of law” or other similar expressions were
negatived and article 15, as recommended by the Drafting Committee,, was
adopted without any change\

ITie vote of the Assembly did not finally set the controversy at rest. A
large part of the Assembly, as also Ambedkar himself, was greatly dissatisfied
with the wording of the article. Even outside the Assembly, the feeling in
favour of incorporating in the Constitution the “due process of law”
provision in some form or other was so deep that the vote of the Assembly
against it evoked a great deal of public criticism. It was felt that draft
article IS"" gave to Parliament a carte blanche to provide for the arrest of
any person under any circumstances it deemed fit. A new article 15- A was
■ therefore drafted:

(1) No person who is arrested shall be detained in custody without being
Informed, as soon as may be, of the grounds for such arrest nor shall he
be denied the right to consult a lega}. practitioner of his choice,

*C. A. Deb.. VoL VII, pp. 853-4.
mid„pp. lOOO-L

^Corresponding provision in the Constitution: article 21.

FUNDAMENTAL EIGHTS

239

■(2) Every -person who is arrested -and detained in custody shaii ' be produced
,, before the nearest magistrate within a, period of twenty-four hours of such
arrest excluding the time necessary . for the journey from the place of arrest
to the- court of the magistrate and no such person shall ^ be detained in
custody beyond the said period without the authority of a magistrate.

(3) Nothing in this article shall apply —

(a) to any person who for the time being is . an enemy alien; or

(b) to any person who is arrested under any law providing for preventive
detention :

Provided that nothing in sub-clause (b) of clause (3) of this article shall
permit the detention of a person for a longer period than three months
unless —

(a) an Advisory Board consisting of persons who are or have been
or are qualified to be appointed as judges of a High Court has reported
before the expiration of the said period of three months that there
is in its opinion sufficient cause for such detention, or

(b) such person is detained in accordance with the provisions of any
law made by Parliament under clause (4) of this article.

(4) Parliament may by law prescribe the circumstances under which and
the class or classes of cases in which a person who is arrested under any
law providing for preventive detention may be detained for a period
longer than three months and also the maximum period for which any
such person may be so detained^

Introducing this article in the Assembly on September 15, 1949, Ambedkar
observed that they were "‘making, if I may say so, compensation for what
was done in passing article 15”. While it might not satisfy those who
believed in the absolute personal freedom of the individual, he claimed that
it did contain the substance of the law of “due process”. The fiirst two
clauses of the article embodied two of the most fundamental principles of
justice recognized by every civilized country and which were already contained
in the Criminal Procedure Code^ The article only sought to raise these
principles to the status of constitutional guarantees so as to restrict the power
of Parliament and the State Legislatures to abrogate them by legislation.
Ambedkar was satisfied that the draft article provided adequate protection
against arbitrary or illegal arrests, and that the inclusion of further safeguards
against inroads by the executive and the Legislature upon the personal liberty
of the individual, urged by some members, was unnecessary^

Ambedkafs speech did not allay the apprehensions of the members. A
large number of amendments were moved. There was a long and spirited
debate in which over twenty membeys took part, Ibe consensus of opinion

Vol IX, pp. 1496-7.

“See sections 60, 61, 81 and 167 of the Criminal Procedure Code, 1898,

"C. 4. Vol IX, pp. 1497-8,

240

FRAMING OF" INDIA’S GONSTITUTION

amoiigsl the speakers appeared to be- that the draft article 'as ■ proposed by
Ambedkar left niucli' to. be desired.' Thakurdas Bliargava, making a bitter
attack:', on the draft article for -its inadequacy, moved several ■amendments
seeking to widen the' scope of the article 'so as clearly to lay' down : (1)' that
every ■■■arrested :person had the right to be prodticed before a magistrate' within
twenty-four hours of his arrest, to be informed ' of the •nature of the
accusation for bis arrest, to be' detained further only by the authority of the
magisf rate ■ and for reasons to be recorded by him, to have access to -courts,
to have access to counsel of his choice, not only to consult but also to be
defended by him, to a speedy and public trial, to produce his defence and
cross-examine the prosecution witnesses, to freedom'" from torture and
unnecessary restraints and unreasonable search of person and property, and
to at least one appeal against his conviction ; and (2) that in cases of
preventive detention no person should be detained without trial for a period
longer than necessary. Every case of detention for a period exceeding fifteen
days was to be placed within a month before a duly constituted tribunal
presided over by a High Court judge with powers of enquiry, including the
examination of the detenu, and of passing orders of further detention or of
conditional dr' absolute release. No detention was to continue unless
confirmed within two months by an order of the tribunal; every case of
continued detention was to be subject to quarterly review by the tribunal;
and no detention was to exceed a total period of one year. No person held
in preventive detention was to be subjected to hard labour or unnecessary
restrictions.

in support of his amendments, Bhargava said that the rights sought to be
extended by clauses (1) and (2) of the draft article as proposed by Ambedkar
constituted little compensation for the deletion of the “due process” clause
and were, in fact, so elementary that no civilized country and no civilized
legislature could have the heart to say that even these should not be
recognized. Not only were no further rights being given to the mdividuals
but even the existing safeguards under the Criminal Procedure Code were
being taken away. There was no provision at all in the draft article to save
a person from the tyrannies of the police and the magistracy after arrest and
detention; under the existing law no person could be kept in detention for
a single minute longer than w^as necessary or reasonable; the executive
must produce an arrested person 'before a court as soon as possible -and no
accused could be kept in custody for a period longer than twenty -four hours
except under the authority of a magistrate and for reasons to be recorded by
iiimk Bhafgava was of the opinion that while in modem times, every civilized
country found preventive detention unavoidable, it was necessary that such
detention was regulated by law which secured the barest demand of justice
to a detenu and which, presuming every accused person before trial to be

^See sections 60, 61, 81 and 167 of the Criminal Procedure Code, 1898.

FUNDAMENTAL RIGHTS 241

innocent, provided for his being treated as such’.

Mrs. Pumima Banerji moved four amendments. She wanted the maximum
period within which every arrested person must be told of the grounds
of his arrest to be specified instead of being left vague as in the draft article,
as being fifteen days, a detenu to be heard by the Advisory Board before it
reported in favour of continuing a detention beyond three months, the
maximum period of detention not to exceed six months, and a maintenance
allowance to be paid to the dependents of a detenu if he happened to be
the sole earning member of his family".

H. V. Kamath suggested that it should be clarified that the jurisdiction
of the Supreme Court and the High Comrts, especially in regard to their right
to issue a writ of habeas corpus, was not sought to be barred in cases of
preventive detention and that the maximum period within which an arrested
person should be informed of the grounds of his arrest should be seven days.
H. V. Pataskar’s amendments proposed that such period should be only
twenty-four hours ; that the law of preventive detention should be uniform
throughout the Union ; that the power to authorize detention of a person
beyond twenty-four hours should vest only in a first-class magistrate and
not in the nearest magistrate as mentioned in the draft article ; and further
that the Advisory Board should consist solely of High Court judges and
should not include persons who were merely “qualified to be appointed” as
such judges^

P. S. Deshmukh moved that clause (3) of the proposed new draft article
should be deleted as being “absolutely useless”. It did not protect the
individual to any greater extent than did the Criminal Procedure Code. By
laying down a procedure for all cases of preventive detention it was, on
the other hand, putting obstacles in the way of Parliament enlarging the
rights of the individuals, or dealing in a more liberal manner with persons
held in preventive detention. R. K. Sidhva was anxious to provide that
unless there was definite evidence before the Advisory Board that a detenu
was a violent person out to destroy freedom and constituted a danger to
society, his aggregate continuous detention should not be allowed to exceed
nine months. Bakshi Tek Chand expressed the opinion that draft article 15-A
was most reactionary inasmuch as there was no written constitution in the
world which contained such provisions for detention of persons without trial
in normal times. The draft article did not even provide for the arrested
persons placing an explanation before the Board considering the advisability
of continuing his detention. The opinion expressed by the Board only on
the basis of police reports or other papers placed before it by the Government
itself could only be ex parted.

*C. Dei.., Vol. IX, pp. 1498-508.
mid., pp. 1510-1.
mid., pp. 1515-7, 1519-23.
mid., pp. 1512-4 and 1525-35.

242 FRAMING OF INDIA’S. CONSTITUTIOH

Speaking in a similar vein, Jaspat Roy Kapoor observed that article 15-A
instead of conceding any fundamental right only provided the extent to which
the ■Legislatures could freely go to impose limitations on personal liberties.
So far as detenus were concerned, they were given no protection and could
be detained without the sanction of a magistrate for any length of time and
without the reasons for detention being conveyed to them. He pleaded that
at least the principle of periodical review of the cases of detention after
every three months should be conceded. Ananthasayanam Ayyangar also
favoured such periodical review and pointed out that even during the 1942
‘‘Quit India” movement cases of preventive detention were reviewed every
six months. Mahavir Tyagi said that the adoption of draft article 15- A
would change the chapter on fundamental rights into “a penal code worse
than the Defence of India Rules of the old Government”. The business
of the constitution-makers was to guarantee the rights of people and not
to make laws to deprive them of their rights. Hriday Nath Kunzru generally
supported the amendments earlier moved by Bhargava and particularly
emphasized (i) that every detenu should be informed of the grounds on
which he was detained as soon after his arrest as possible and should be given
an opportunity of submitting his explanation ; (ii) that even if it was decided
not to place the case before an Advisory Board for a periodical review, a
maximum period of detention should be laid down\

Perceiving nothing wrong in the article to merit the amount and the
vehemence of the criticism voiced against it, Alladi Krishnaswami Ayyar
analyzed the contents of the article as moved by Ambedkar and pointed out
that it did not in any way alter or obstruct the continuance of the guarantees
existing under the Criminal Procedure Code. Clauses (1) and (2) sought to
guarantee only a minimum with which the Legislatures could not interfere.
As for clause (3), preventive detention, particularly in the prevailing conditions
in the country, was a necessary evil, since there were certain undesirable
people determined to undermine the sanctity of the Constitution, the security
of the State and even individual liberty itself. Regarding the constitution
of Advisory Boards, Alladi Krishnaswami Ayyar said that it was not necessary
or appropriate to introduce any cast-iron provision to the effect that only
judges or ex-judges would be appointed on the Boards since there were many
outside this categoiy who were eminently fit to be appointed on the Board
and some of whom could even be considered more talented and better suited
than judges. On the question of the procedure of an Advisory Board, he
said : '

If you say that in every case there shall be notice, there shall be a charge,
there shall be a hearing, tl^t there shall be examination and
cross-examination, there shall be a counsel, then this Board may
convert itself into a magistrate’s court with all the paraphernalia of

A. Deb,, VoL IX, pp. 1541-52.

FUNDAMENTAL RIGHTS

243

the magistrate’s court and it will defeat the very purpose of the article’.

Towards the end of a long and animated debate, Ambedkar accepted
certain points made by the critics. He dealt with the draft article and the
criticism against it clause by clause and made certain suggestions towards
meeting the more important points. Regarding clause (1) there were two
main points emphasized by several members : (i) that instead of providing
that an arrested person would be informed of the grounds of arrest “as soon as
may be” a time-limit of twenty-four hours, seven days or fifteen days should
be specifically laid down for the purpose ; and (ii) that an arrested person
should have the right not only “to consult” but also “to be defended” by a
legal practitioner of his choice. Commenting on the former, Ambedkar said
that the words “as soon as may be” were integrally connected with clause (2)
which laid down that no person would be detained in custody for more
than twenty-four hours without authority for such detention being obtained
from a magistrate. Since the magistrate had obviously to be told of the
grounds of arrest, “as soon as may be” could not extend beyond twenty-four
hours. As for the second point, Ambedkar thought that the right “to
consult” included also the right “to be defended” because consultation would
be purposeless if it was not for the purpose of defence. However, in order
to remove any ambiguity, he agreed that the words “and be defended by a
legal practitioner” suggested by Bhargava should be added after the words
“to consult”.

With regard to Pataskar’s suggestion that in clause (2) the word
“magistrate” should be replaced by the words “first-class magistrate”,
Ambedkar did not think that this would be in the interest of the accused.
'Fhe nearest magistrate might not be a fihst-class magistrate and it might then
be necessary for a police officer to keep a man in custody for a longer period.
As for Bhargava’s suggestion for making it obligatory upon the magistrate
to record in writing his reasons for the detention order, this was not necessary
since what was involved in the clause was only remand to custody for a
further period and the magistrate was not to have the authority to consider
whether the charge framed against the accused by the police was prima facie
borne out.

Coming to clause (3) dealing with preventive detention, the most
controversial part of the draft article, Ambedkar referred to the suggestion
for the deletion of the clause. He pointed out that, by virtue of the entries
in the legislative lists, the Union and States already possessed complete powers
to legislate on preventive detention. The intention of the new article was
actually to curtail these powers and render them subject to certain specific
limitations. In the absence of such a provision, the Legislatures, he pointed
out, might make any kind of law for preventive detention.

In regard to the proviso to clause (3), Ambedkar referred to the two

Ky. A. VoL IX, pp. 1535-8.

244

FRAMING ' OF INDIANS ' CONSTITUTION

criticisms made in the course of the debate. The first was that in the case
of a person arrested and detained under ordinary law, as distinct from the
law relating to preventive detention, provision had been made in clause ( 1 )
that he should be informed of the grounck of his arrest ; but such a provision
had not been made in the case of a person held in preventive detention. The
second criticism was that the period of three months during which a person
could be held in preventive detention without enquiry or trial was too long
and needed to be reduced to fifteen days or some similar period. Ambedkar
considered the former to be legitimate criticism and agreed to amend the
draft article by adding two new clauses which required the authority passing
an order of detention to communicate the grounds of such detention to the
person concerned as soon as may be — ^unless it was against the public interest
to disclose the facts. As for the second criticism, he said that the period
of three months was considered reasonable, mainly on practical and
administrative grounds, as the number of cases of preventive detention might
be considerable and adequate time had to be provided for their disposal
by the Advisory Board.

Regarding the Advisory Board a few questions were raised : (i) Wliat

procedure would the Board follow? (ii) Would it be obligatory on the
executive to place before the Board all the papers connected with the
preventive detention of a person ? (iii) Would the accused be entitled to
appear before the Board, cross-examine the witnesses and make his own
statement ?

As to the first question, Ambedkar agreed to amend the draft article so
as to give power to Parliament to make provision for the procedure to be
followed by the Advisory Board. Regarding the second question, he pointed
out that for any detention beyond three months the executive had to obtain
a recommendation from the Advisory Board and it was in its own interest
to place before the Board all the relevant documents. Replying to the third
question, Ambedkar observed that the right of cross-examination was
included in the right to defend. Besides, it was already contained in the
Indian Evidence Act and the Criminal Procedure Code and there was no
reason to fear that it would be taken away “unless a Provincial Government
goes absolutely stark mad'".

Commenting on the various suggestions regarding maintenance allowances
for detenus and their families, periodic reviews of cases, laying down of the
maximum period of detention and other matters, Ambedkar said that there
was no need to provide for all these matters in the Constitution since provision
could better be made in the law to be enacted by Parliament under clause (4).
Finally, in answer to Kamath’s question whether it was possible for the
High Courts to issue writs for the benefit of detenus, he said that a writ
ot habeas corpus could be asked for and issued in any case ; but its object
would be limited to finding out by the court whether the man was arrested
under any law or merely by an executive whim. Once the court was satisfied

FUNDAMENTAL RIGHTS

245

that the man was arrested under some law, habeas corpus came to an. end.
As for other writs, they depended upon the circumstances of each case ; if
any one had not been arrested under a law, he could ask for any writ which
might be necessary and appropriate for redressing the wrong. It was not
necessary to provide for it in the draft article.

The new draft article 15- A, as amended by the suggestions made or accepted
by Ambedkar, was adopted by the Assembly :

(!) No person who is arrested shall be detained in custody without being
informed, as soon as may be, of the grounds for such arrest nor shall he
be denied the right to consult and be defended by a legal practitioner of
his choice.

(2) Every person who is arrested and detained in custody shall be produced
before the nearest magistrate within a period of twenty-four hours of such
arrest excluding the time necessary for the journey from the place of
arrest to the court of the magistrate and no such person shall be detained
in custody beyond the said period without the authority of a
magistrate.

(3) Nothing in clauses (1) and (2) of this article shall apply—

(a) to any person who for the time being is an enemy alien; or

(b) to any person who is arrested under any law providing for preventive
detention :

Provided that nothing in sub-clause (b) of clause (3) of this article shall
permit the detention of a person for a longer period than three months
unless—

(a) an Advisory Board consisting of persons who are or have been or
are qualified to be appointed as judges of a High Court has reported
before the expiration of the said period of three months that there is
in its opinion sufficient cause for such detention ; or

(b) such person is detained in accordance with the provisions of any
law made by Parliament under clause (4) of this article.

(3-a) Where an order is made in respect of any person under sub-clause (b)
of clause (3) of this article, the authority making an order shall, as
soon as may be, communicate to him the grounds on which the order has
been made and afford him the earliest opportunity of making a
representation against the order.

(3-b) Nothing in clause (3-a) of this article shall require the authority
making any order under sub-clause (b) of clause (3) of this article to
disclose facts which such authority considers to be against the public
; interest to disclose.

(4) Parliament may by law prescribe the circumstances under which and the
class or classes of cases in which a person who is arrested under any law
providing for preventive detention may be detained for a period longer
than three months and also the maximum period for which any such
person may be so detained, and Parliament may also prescribe by law the

246

FRAMING -OF INDIA’S CONSTITUTION

procedure to be followed by an Advisory Board in an enquiry under
clause (a) of the proviso to clause (3) of this articled

In the course of revision, the Drafting Committee renumbered draft articles
15 and I5-A as articles 21 and 22 respectively. The other changes were:

(i) the ‘legal equality” provision which had been coupled with the “protection
of life and liberty” provision in draft article 15 was separated and transferred
under the heading “Right to equality” as article 14, the renumbered article 21
being confined to guaranteeing that no person would be deprived of life
and personal liberty except according to procedure established by law;

(ii) the proviso to clause (3) of draft article 15-A was converted into an
independent clause (4) in the renumbered article 22 ; and (iii) clauses (3-a),
(3-b) and (4) were redrafted and renumbered as clauses (5), (6) and (7)
respectively. These changes were all of a drafting nature.

The Drafting Committee also included a new article 373 among the
temporary and transitional provisions. Explaining its purpose the committee
observed :

We have felt that clauses (4) and (7) of this article as revised may create
some difficulty as there would not be any law made by Parliament in force
immediately on the commencement of the Constitution in accordance with
which persons may be kept under detention for a period longer than three
months. We have therefore proposed a new article 373 whereby power
has been given to the President to issue an order in terms of clause (7)
of article 22 which will have effect until the expiration of one year
from tbe commencement of the Constitution or until Parliament takes
action under the said clause, whichever is earlier^

While the text of article 21 thereafter remained unaltered, that of article 22
underwent further modifications. When the revised Draft Constitution was
considered by the Assembly on November 14, 15 and 16, 1949, article 22
was severely criticized and several amendments were moved to it. On behalf
of the Drafting Committee itself, T. T. Krishnamachari moved two
amendments which sought further to redraft clauses (4) and (7) so as to
indicate clearly that there would be a maximum period laid down by
Parliament for which any person or any class or classes of persons could be
detained by any law providing for such detention; even in cases where
the Advisory Board ^proved of detention beyond three months no authority
in India could in any circumstances order the detention of a person beyond
the maximum limit so laid down by Parliamenf. H. V. Kamath felt that
the acceptance of Krishnamachari’s amendments would mean that if
Parliament laid down in a class of cases the maximum period of preventive
detention, then, even without recourse to the machinery of the Advisory
A.

^Draft Constitution as revised by the Drafting Committee, November 3, 1949.
Select Documents IV, 18, p. 747.

*C. A. Dek, VoL XI, pp. 466-7 and 531-2,

FUNDAMENTAL RIGHTS

247

Board, a person could be detained up to that period. He desired to make
it obligatory on the executive to refer to the Board every case of preventive
detention where the detention was proposed to be prolonged beyond three
months; the only right conferred by article 22 was the light to detain
without trial, and by his amendments he was making ‘‘a last attempt' ’ to
safeguard the liberty of the individual or at least to “mitigate the harshness
and the injustice that might result 'from the abuse of power". Mrs. Pumima
Banerji also opposed Krishnamachari’s amendment to redraft clause (7)
since she feared that under the redrafted clause Parliament might dispense
with the constitution of the Advisory Board by laying down a general law
authorizing detention beyond three months up to a maximum period and
thereby in ejffect making it unnecessary to place the case of detenus covered
by this law before the Board'.

Replying to the debate on November 16, 1949, Ambedkar explained
the scope of the article as it was sought to be amended by the Drafting
Committee :

First, every case of preventive detention must be authorized by law. It
cannot be at the will of the executive.

Secondly, every case of preventive detention for a period longer than three
months must be placed before a judicial board, unless it is one of those
cases in which Parliament, acting under clause (7), sub-clause (a), has by
law prescribed that it need not be placed before a judicial board for
authority to detain beyond three months.

Thirdly, in every case, whether it is a case which is required to be placed
before the judicial board or not. Parliament shall prescribe the maximum
period of detention so that no person who is detained under any law
relating to preventive detention can be detained indefinitely. There shall
always be a maximum period of detention which Parliament is required to
prescribe by law.

Fourthly, in cases which are required by article 22 to go before the judicial
board, the procedure to be followed by the Board shall be laid down by
Parliament.

The original article 15- A according to Ambedkar was open to two main
criticisms ; (i) cases of preventive detention referred to the Advisory Board
under clause (4) (a) did not appear to be subject to the maximum period
of detention prescribed by Parliament by law under clause (7) ; and (ii) the
requirements as to the communication of grounds of detention did not apply
to persons detained as preventive detenus under clause (4) (a). The amended
article met both these criticisms. Replying to Mrs. Purnima Banerji, he
Isaid that while he agreed that artide 22 excepted certain cases from the
purview of the Advisory Board, he felt that it was necessary to make such a
distinction because there might be particular cases of detention in which the

/^■a A. Deb,, VoL XI, pp. 532-3 and 535-6.

248

FRAMING OF INDIA’S CONSTITUTION

circumstances: were so severe and the consequences so dangerous to tlie very
existence of- the State that it would not even be desirable ■ to permit the
members of the Board to know the facts. . Even in the cases so excepted
from: the purview of the Board,- Ambedkar -added, there were two mitigating
circumstances; (i) such cases were to be defined by Parliament and not by
the executive arbitrarily, and (ii) in every ' case ' the maximum period :ot
detention would have to be prescribed by law.

When put to vote, the Drafting Committee’s amendments as moved by
Krishnamachari were adopted and article 22 of the Constitution assumed its
present formh The two articles as adopted read :

21. No person shall be deprived of his life or personal liberty except
according to procedure established by law.

22. (1) No person who is arrested shall be detained in custody without
being informed, as soon as may be, of the grounds- for such arrest nor shall
he be denied the right to consult, and to be defended by, a legal practitioner
of his choice.

(2) Every person who is arrested and detained in custody shall be produced
before the nearest magistrate within a period of twenty-four hours of such
arrest excluding the time necessary for the journey from the place of arrest
to the court of the magistrate and no such person shall be detained in
custody beyond the said period without the authority of a magistrate.

(3) Nothing in clauses (1) and (2) shall apply —

(a) to any person who for the time being is an enemy alien ; or

(b) to any person who is arrested or detained under any law providing
for preventive detention.

(4) No law providing for preventive detention shall authorise the detention
of a person for a longer period than three months unless —

(a) an Advisory Board consisting of persons who are, or have been, or
are qualified to be appointed as, judges of a High Court has reported
before the expiration of the said period of three months that there is
in its opinion sufficient cause for such detention :

Provided that nothing in this sub-clause shall authorise the detention of
any person beyond the maximum period prescribed by any law made by
Parliament under sub-clause (b) of clause (7) ; or

(b) such person is detained in accordance with the provisions of any law
made by Parliament under sub-clauses (a) and (b) of clause (7).

(5) When any person is detained in pursuance of an order made under any
law providing for preventive detention, the authority making the order
shall, as soon as may be, communicate to such person the grounds on
which the order has been made and ^hall afford him the earliest opportunity
of making a representation against the order.

(6) Nothing in clause (5) shall require the authority making any such order

Vol. XI, pp. 575-6 and 600. _ r , -

■ FUNDAMENTAL RIGHTS

249

■ ■ as is referred to in that danse to disdose facts which such authority
considers to be against the public interest to disclose.

(7) Parliament may by law ' prescribe—

-(a) the circumstances under which, and- the class or classes of cases in
which, a person may be detained for a period longer than three months
under any law providing for preventive detention without obtaining the
■ opinion of an Advisory Board in accordance with the provisions of
sub-clause (a) of clause (4);,'

(b) the maximum period for which any person may in any class or
classes of cases be detained under any law providing for preventive
detention; and

RIGHT AGAINST EXPLOITATION
Articles 23-24

Prohibition of traffic in human beings and forced labour

{Article 23)

Prohibition of employment of children in factories {Article 24)

The right against exploitation was mentioned in the drafts prepared by
B. R. Ambedkar, K. M. Munshi and K. T. Shah. While Ambedkar’s draft
simply provided that subjecting a person to forced labour or tO' involuntary
servitude would be an offence^ the draft article suggested by Munshi
contained more elaborate provisions for the abolition of all forms of slavery,
traffic in human beings, and compulsory labour. Munshi’s draft also
contained a provision prohibiting child labour in all forms. E. T. Shah’s
draft expressly forbade slavery of any kind, as well as the recognition of any
right amounting to property in human beings; prohibited forced labour or
begaP : and it declared that all human beings in the Union of India would
he free and that all labourers attached to land would be remunerated by
wages at prescribed or agreed rates. It also recognized the right of
the Government to conscript by law the man-power of the country
for purposes of national defence, ’social service or for meeting a sudden
emergency'^

When the subject was first considered in the Sub-Committee on
Fundamental Rights on March 27, 1947, it was agreed to provide for the
abolition of slavery, traffic in human beings and begar and for the prohibition
of the employment of children below fourteen years of age in mines and

^Ambedkafs draft, article 11 (J) (9). Select Documents 11, 4(ii) (d), p. 87.
'^■f'^Begc^: Compulsory labour with or without payment.

^MuhshTs draft, article VII (3) and (5) and Shah’s draft, articles 25 -6 and 39-4D.
Selict Documents Hi 4(ii) (b) and II, 2(ii), pp. 77, 51-2i ■ . ,

250

FRAMING OF INDIANS CONSTITUTION

factories and in other hazardous occupations. In regard to forced labour
other than it was decided by a majority vote that provision should
be included prohibiting such labour^ but subject to certain exceptions which
would cover specified forms of public service, other than service in the
armed forces.

A separate proposal to the effect that military service should also be
excepted was lost by a narrow majority. The discussion on the subject was
reopened the next day. On a suggestion from Munshi, the question of
compulsory military service was considered afresh, but the sub-committee
again decided to insert a provision prohibiting compulsory military service.
Ambedkaris suggestion for exempting compulsory military training, as
distinguished from military service, was also lost by a small majority and
It was decided to insert a provision similar to the one in the American
Constitution against ‘^slavery and involuntary servitude’’ and also a specific
provision prohibiting conscription for military service. A majority of the
members, however, agreed that compulsory service under any general scheme
of education would be exempted from the scope of the prohibition'.

Provisions against exploitation, as finally drafted by the sub-committee,
were reproduced as clause 15 in the draft report of the sub-committee as
follows :

15. (1) (a) Slavery,

(b) traffic in human beings,

(d) any form of involuntary servitude except as a punishment for crime

whereof the party shall have been duly convicted,

are hereby prohibited and any contravention of this prohibition shall be an
offence.

Explanation : Compulsory service under any general scheme of education
does not fall within the mischief of this clause.

(2) Conscription for military service or training, or for any work in aid
of military operation, is hereby prohibited.

(3) , No person shall engage any child below the age of 14 years to work
in any mine or factory or any hazardous employmenf.

^Sub-Committee Minutes, March 27-28, 1947, Select Documents 11, 4(iii), pp. 121,
125-6, 128.

^Select Documents II, 4(iv), p. 140. The provisions relating to slavery and
involuntary servitude in sub-clause (1) were based on the Thirteenth Amendment
of the U.S. Constitution. The prohibition of hegar was added to them and any
contravention of the general prohibition contained in the clause made an offence.
For the prohibition of conscription for military service or training contained in
sub-clause (2) there was no precedent available. On the other hand, some of the
constitutions e.g., the Swiss (article 18, para. 1), the Czechoslovakian (art. 127,
para. !) and the Chinese (article 20) Constitutions contained provisions Imposing
compulsory military service on their citizens. The principle of prohibition of
employment of children in mines, factories or other hazardous jobs embodied in

FUNDAMENTAL RIGHTS

251

Gommenting on the draft report, K. T. Shah suggested the substitution of
‘‘national or social services"® in place of “education” in the Explanation,,. If
conscription was justified and permitted for education, there was no reason
why it should not be permitted for matters relating to public health or in
times of civil calamities. Making a strong plea for social and economic
planning on a national scale and for so developing all available resources as
to provide work for every able and qualified citizen, Shah emphasized that
it would not be possible for an independent sovereign India to make up the
leeway in the social and economic field from which she suffered unless the
Constitution allowed power to the State to conscript all available man and
woman power in the country". On the other hand, Rajkumari Amrit Kaur
and Mrs. Hansa Mehta were opposed to any form of compulsory service
being provided for in the Constitutionl Clause 15 was adopted by the sub-
committee without any change except for a verbal modification replacing
the word “mischief’ by the word “purview” in the Explanation to sub-
clause (ly.

In their minutes of dissent, appended to the final report of the sub-
committee, Rajkumari Amrit Kaur and Mrs. Hansa Mehta reiterated their
opposition to compulsory service in any form : giving to the State powers of
compulsion in any sphere of life was against all tenets of democracy. They
suggested the creation of a paid social service for the spread of education
and other nation-building activities. In a country where there was no lack of
man-power, they felt, compulsion was particularly out of place. Alladi
Krishnaswami Ayyar and Ambedkar„ taking the contrary view, suggested
the deletion of clause 15(2) prohibiting conscription for military service. It
was one thing not to have recourse to conscription as a matter of policy
but quite another for a nation or a State to deny to herself the power to
conscript if and when occasion arose. No country, however peaceful and
non-violent in its intention or philosophy, could escape the necessity of
compulsory military service for defending itself and its liberty when attacked
by another nation. A ban on compulsory military service would be nothing
but wilful self-immolation. Alladi Krishnaswami Ayyar said that war might
be forced on India much against her will and, in sheer self-defence, she might
have to raise an army appropriate to the occasion. Shah in his minute of
dissent said that while education certainly was amongst the foremost of the
needs of nation-building for which conscription would be fully justified, that

sub-clause (3) was based on the Indian National Congress declaration of 1933 and on
the Yugoslavian Constitution (Article 23, para. 2). [See B. N. Rau’s notes, Select
Documents llj p. 149.]

^K. T. Shah’s letter to B. N. Rau, AT»rii 10, 1947, Select Documents l\ 4(v) (f),

^Rajkumari Amrit Kaur’s letter to B. N. Rau, April 10, 1947, Select Documents
II, 4(v), p. 153., . ..

^Sub-Committee Minutes, April 14, 1947, Select Documents If, 4(vii), p. 165.
Report ibid., 4(viii), p. 173.

252

FRAMING OF INDIA’S CONSTITUTION

should not make the claims of other items in nation-biiilding or social service
like health any the less urgent'.

' . Clause 15 was taken up for consideration by the Advisory Committee on
/April 21 and 22, 1947. Tlie discussion was brief : sub-clause (1) ' which
prohibited slavery, traffic in human hdngs, hegar and involuntary servitude
was adopted without any modification except for the omission of ""slavery”.
The omission was made at the instance of Rajagopalachari who considered
it improper to adopt the laws of America enacted at -a time when 'slavery
was , prevalent. 'Rajkumari Amrit Kaur once again -raised her voice against
compulsion in any form being provided for in the Constitution. On the
other hand, Ambedkar reiterated his view that the prohibition of compulsory
military service contained in sub-clause (2) should be done away with and the
Explanation to sub-clause (1) widened in its scope by the elimination of the
word ""education”. He also proposed the addition of a clause laying down
that any compulsory service should be imposed upon all equally, without
any discrimination, and paid for by the State.

The Chairman of the committee appointed a small ad hoc committee
consisting of Mrs. Hansa Mehta, Rajagopalachari and Govind Ballabh Pant
to consider the matter and prepare a suitable draft. This committee redrafted
the Explanation to sub-clause (1), omitted sub-clause (2) prohibiting
conscription for military service and training, and suggested that sub-clause (3)
relating to prohibition of child labour be made an independent clause
with the addition of a new Explanation. Ambedkar expressed his
disappointment that his suggestion regarding payment for compulsory service
had not been accepted. He was, however, prepared to trust the good sense
of the Government to see that it did not impose any economic hardships,
particularly on the poor people. Despite Rajkumari Amrit Kauris
vigorous opposition, the recommendations were accepted".

The redrafted provisions, as adopted by the Advisory Committee and
reproduced as clauses 11 and 12 in its interim report, were as follows:

1 1, (a) Traffic in human beings and

(b) forced labour in any form including hegar, and involuntary servitude
except as a punishment for crime whereof the party shall have been
duly convicted,

are hereby prohibited and any contravention of this prohibition shall be an
offence.

Explanation: Nothing in this sub-clause shall prevent the State from
imposing compulsory service for public purposes without any discrimination
on the ground of race, religion, caste or class.

12. No child below the age of 14 years shall be engaged to work in any

^Minutes of Dissent to Report of tile Sub-Committee, Select Documents II,
4(viii), pp. 180-1, 183, 193-4.

“Advisory Committee Proceedings, April 21-22, 1947. Select Documents II, 6(iv),
pp. 255-6, 263-4

FUNDAMENTAL RIGHTS

251

factory,, mine or any other hazardous employment.

Explanation : Nothing in this clause shall prejudice any educational

programme or activity involving compulsory labour^

When the two clauses came up for discussion in the Assembly on May 1,
1947, Munshi moved an amendment. He suggested that the sentence
“Traffic in human beings and begar and other similar forms of forced labour
are prohibited, and any contravention of this prohibition shall be an offence”
should be substituted for clause 1 1 and the Explanation dropped as it became
unnecessary in view of the shortening of the whole sentence. The purpose
of the amendment was only to abridge the clause and word it in a
comprehensive form in one sentence. Briefly explaining its scope, Munshi
said that it would prohibit traffic in human beings and forced labour like
begar; but other forms of labour, e.g., labour for educational purposes or
for any other purpose of public service, would be regulated by legislation.
Munshi also suggested the deletion of the Explanation to clause 12.

Munshi’s amendment was accepted by the Assembly without any discussion
but the clause itself and the amendment to clause 11 did not have a smooth
passage. The controversy centred round the advisability of dropping the
Explanation from the clause. Ambedkar, supported by some other members,
held the view that the omission of the Explanation would not be wise. It
would cause serious difficulties to the State which might be constrained, in
an emergency, to compel people to render service for public purposes, BegOr,
he said, was also something imposed by the State for certain public purposes
and it was quite possible for anyone to argue that even compulsory service
imposed by the State, either for military or social purposes, would amount
to begar. On the other hand, Alladi Krishnaswami Ayyar and others who
supported Munshi’s amendment, held the view that there was no need for
retaining the Explanation, since the clause as redrafted would not preclude
military conscription. In spite of the anti-servitude and anti-slavery clause
in the American Constitution, the U. S. Supreme Court had held that there
was nothing to prevent military conscription in so far as the very existence
of the State depended upon military force. On the same ground, Alladi
Krishnaswami Ayyar said, the words “begar and similar for m s of forced
labour” could not possibly be interpreted as excluding conscription.
Ambedkar, however, expressed the view that the United States Supreme
Court judgment proceeded on the hypothesis that in a political organization
the free citizen had a duty to support the government and that compulsory
military law was nothing more than calling upon the citizen to do the duty
which he already owed to the State. This was a precarious foundation for
so important a subject as the necessity of compulsory military service for
the defence of the State. On his suggestion, the clause was referred to the
ad hoe committee appointed by the President of the Assembly earlier for

‘Interim Report, Annexure, Select Documents II, 7(i), pp. 297-8. .

254

FRAMING OF INDIA’S CONSTITUTION

considering the clauses on citizenships. This committee reported the next
day ; in its view the Explanation was necessary in order that the wording
‘‘forced labour” might not have a controversial interpretation. On a suggestion
from Munshi, the President decided to hold over further consideration of
the claused It was thereafter not further discussed by the Constituent
Assembly until the Draft Constitution came up for consideration.

Clauses 11 and 12 were reproduced in the Constitutional Adviser’s Draft
Constitution as clauses 18 and 19 and in the Draft Constitution prepared by
the Drafting Committee as articles 17 and 18, with only minor drafting
changes :

17. (1) Traffic in human beings and begar and other similar forms of
forced labour are prohibited and any contravention of this provision shall
be an offence punishable in accordance with law.

(2) Nothing in this article shall prevent the State from imposing compulsory
service for public purposes. In imposing such service the State shall not
make any discrimination on the ground of race, religion, caste or class.

18. No child below the age of fourteen years shall be employed to work in
any factory or mine or engaged in any other hazardous employment*.

Draft articles 17 and 18 came up for consideration in the Assembly on
December 3, 1948. To the former several amendments were moved,
Karimuddiii desired to qualify the prohibition of begar hy the words “except
as a punishment for crime” so as to enable jail authorities to extract work
from prisoners. Several other members sought to extend the scope of the
provision relating to traffic in human beings to certain specific practices like
serfdom, prostitution, the devadasi system (/.e. dedication of an unmarried
girl to a temple deity) and other practices, prevalent in certain parts of the
country. Commenting on a motion for prohibiting the devadasi system and
other forms of enslavement and degradation, K. T. Shah pointed out that
although, as commonly understood, traffic in human beings meant only
slavery as it was practised in olden times and until recently in the countries
of Europe and America, it also covered what was known as white slave
traffic, namely, the buying and selling of young women for export or import
from one set of countries to another and their permanent enslavement or
servitude to an owner or proprietor of an establishment of commercialized
vice. Shah also proposed what he called a very small but important
amendment seeking to add the word “only” after the words “discriminatioii
on the ground” in clause (2).

Bhupinder Singh Mann renewed a proposal made earlier by Ambedkar
in the Advisory Committee that the Constitution should provide for payment
of compensation for any compulsoiy service imposed by the State.

1C. VoL III, pp. 468-75.

“Ibid,, p. 528. Also see Report of the ad hoc Committee oe clause It, Select
Documents If, 7(11), p. 299.

^Select Documents III, 1(1) and 6, pp. 10, 524.

FUNDAMENTAL RIGHTS

255

H. V- Kamath suggested that for the words “service for public purposes’"
in clause (2) the words “service for social or national purposes” be substituted.
He felt that national service or social service had a wider and a higher and
a more comprehensive connotation than public service'.

During the debate on the draft article, several members welcomed it as a
charter of liberty for the downtrodden people who had so far suffered from
the imposition of forced labour in one form or other at the hands of Princes
and zumindars, Gurmukh Singh Musafir, while welcoming the article
generally, referred to two 'points: (i) that the curse of prostitution should
be specifically abolished, and (ii) that provision must be made for
compensation being paid for compulsory service. Mrs. G. Durgabai referred
to the system of devadmis and said that the worst form of this custom had
existed in Madras for a long time but that it had already been prohibited
there under a law and whatever relics of the system still, remained were
bound to disappear in course of time ; and no specific provision in this regard
was necessary in the Constitution. B. Das suggested that particular attention
be paid to the prohibition of traffic in women\

The practice ot begar was thus described by Raj Bahadur :

As a man coming from an Indian State, I know what this begar, this
extortion of forced labour, has meant to the downtrodden and dumb
people of the Indian States. If the whole story of this begar is written,
it will be replete with human misery,, human , suffering, blood and- tears.
I know how some of the Princes have indulged In their pomp and luxury,
'in their reckless life, at the expense of the ordinary man, how they have
used the downtrodden ; labourers and dumb ignorant people for^ the sake
of their pleasure. I know for instance how for duck shooting a very large
number of people are roped in forcibly to stand all day long in mud and
slush during cold chilly wintry days. I know how for the sake of their,
game and hunting people have been roped in large numbers for beating
the lion .so that the Princes may shoot it. I have also seen how poor
people are employed for domestic and other kinds of labour, no matter
whether they are ailing or some members of their family are ill, . . Very
often these tyrannies are perpetrated upon poor people by the , petty
officials. Not. only do these petty officials perpetrate such tyrannies but
they also extort bribes from the labourers who want to escape the curse
of this begar,

Raj Bahadur added that article 17 would free the poor, downtrodden and
■■dumb people , , of 'the Princely States from the curse of begar which had been
a blot on humanity, a dead-weight on the shoulders of the common man and
a denial of all that was good and noble in human civilization*.

^C. A, Deb., Voi. VII, pp. 803-7.

pp, Sm-9,

mid,, pp. w9-m.

258 FRAMING OF. -INDIA’S CONSTITUTION

Kamath raised the point that the word ''begaf had -not,'; been ' defined
anywhere in ■ the Constitution. S. Nagappa pointed out that the .practice
of was also prevalent in his part of the country' /.e., in, Madras,
especially among the Harijans. . Referring to certain instances of begar,
he'^'said:- . . , , .

'■ Whenever cattle . die, the' owner of the cattle wants.. these poor Harijans to.
'come and remove. the dead cattle, remove. the skins, tan them and make
(slippers) and supply them free of cost.

- The poor people, especially the Harijans, were also forced by the landlo,rds
to plough their lands or whitewash their houses and so on for a mere morsel
of food. Nagappa added that forced labour was practised even by the
Government, e.g., when there was a murder, tht past jnortemy the
police forced the Harijans to remove the dead body and look after the
subsequent funeral arrangements*.

Dealing with the various amendments, T. T. Krishnamachari said that
the basic principle sought to be enshrined in the draft article was that of
ensuring certain rights to the individual so that he would be ennobled ; not
to import into the article reform of all the abuses which society had inherited
from the past. The Constitution had necessarily to provide for matters
where vested interests were likely to seek the perpetuation of anti-social
customs for purposes of economic gain. Referring particularly to begar he
said that some form of forced labour existed in practically all parts of the
country, whether it was called begar or by any other name. They were
trying to root out this evil and by putting it among the fundamental rights
it would hasten legislation to wipe out evils of this kind as this would become
an obligation on the State. But there was no point in trying to include the
reform of all abuses which society was heir to, and it would be a blot on
the fair name of India to enact in the Constitution a ban on social abuses
against which public opinion was already sufficiently well mobilized, and
which could be wiped out by ordinary legislation and therefore were bound
to disappear in course of time".

Concluding the debate, Ambedkar rejected all the amendments except the
one moved by K. T. Shah for the inclusion of the word “only” after the
words “discrimination on the ground” in clause (2) of the article. Replying
to Kamath^ he said that the words “social and national” were not necessary
since the word “public” was wide enough to cover both. With regard to
the suggestion regarding compensation for compulsory service, he felt it was
not desirable to put such a fetter on the authority of the State. Compulsory
service demanded by the State would be restricted to hours of leisure and,
in any case, was to be demanded from all without any discrimination. Ai
the amendments, except the one accepted by Ambedkar, were rejected by the

A. Deb,, Vol. vn, pp. 806-11.

Hbid„ p. 811.

FUNDAMENTAL RIGHTS

257

Assembly and draft article 17 adopted as amended'.

In regard to article 18, an amendment was moved by Damodar Swamp
Seth. It sought to include a clause providing for the prohibition of
employment of women in mines and industries during the night. The
amendment was also supported by Shibban Lai Saxena, However, it failed
to secure majority support and was negatived and article 18 was adopted
without any modificati 9 n^

At the revision stage, the Drafting Committee renumbered draft articles 17
and 18 as articles 23 and 24 of the Constitution :

23. (1) Traffic in human beings and begar and other similar forms of
forced labour are prohibited and any contravention of this provision shall
be an offence punishable in accordance with law,

(2) Nothing in this article shall prevent the State from imposing compulsory
service for public purposes, and in imposing such service the State shall
not make any discrimination on grounds only of religion, race, caste or
class or any of them.

24. No child below the age of fourteen years shall be employed to work
in any factory or mine or engaged in any other hazardous employment.

RIGHT TO FREEDOM OF RELIGION
Articles 25-28

Freedom of conscience and free profession, practice and
propagation of religion {Article 25)

Freedom to manage religious affairs {Article 26)
Freedom as to payment of taxes for promotion of any
particular religion {Article 27)

Freedom as to attendance at religious instruction or religious
worship in certain educational institutions {Article 28)

The guarantee of religious freedom was contained in the draft articles
formulated by Munshi and Ambedkar. The clause in Munshi’s draft provided
that all citizens would be equally entitled to freedom of conscience and
the right freely to profess and practise religion. The right was not unrestricted
for it had to be exercised in a manner compatible with public order, morality
and health. Economic, financial or political activities associated with
religious worship were not to be deemed as being included in the right to
profess or practise religion. Two other safeguards were also provided. No
person was to be compelled to pay taxes the proceeds of which would be
specifically appropriated for the payment of the religious requirements of
any community of which he was not a member: and religious instruction

*C. Oe6., Vol. VII, pp. 812-4,

mid., pp. 814-5,

258

FRAMING OF INDIA’S CONSTITUTION

was not to be compulsory for a member of a community which did not profess
that religion'. Similar provisions were also included in Ambedkar’s draft
which in addition provided for freedom to preach and to convert ; and further
that every religious association would be free to regulate and administer
its affairs within the limits of the laws applicable to alf .

Both Munshi and Ambedkar had included certain other proposals relating
to freedom of religion which received some attention initially but were later
dropped at one stage or another. Notable among these was a clause by
Ambedkar expressly enjoining the State not to “recognize any religion as
the State religion”®. There were also two provisions in Munshi’s draft, one
of which said that minors would not be free to change their religious
persuasion without the permission of their parents or guardians, while the
other prohibited conversion from one religion to another brought about by
coercion, undue influence or the offering of material inducemenf .

The Fundamental Rights Sub-Committee first discussed freedom of religion
on March 26, 1947, and adopted Munshi’s clause relating to the right to
profess and practise religion with the significant modifications that instead of
being confined to citizens, the right was extended to all persons ; and at
the instance of a Sikh member, Harnam Singh, “the right to wear and carry
kirpans'"^ was recognized as part of the practice of the Sikh religion. The
sub-committee also adopted a clause that no one would be compelled to pay
taxes the proceeds of which were to be appropriated for religious purposes.
Two other clauses— both put forward by B. N. Rau — dealing respectively
with the freedom to manage religious affairs, and freedom of attendance
at religious instruction in schools, were also adopted. Later the

^MiinsM’s draft, article VI clauses (1), (4) and (5), Select Documents II, 4(ii) (b),
p. 76.

^Ambedkar’s draft, article 11(1), (14), (15), (19) and (20), Select Documents II,
4(ii)(d), pp. 87-8.

clause (17). The Fundamental Rights Sub-Committee initially included this
clause in its Draft Report (vide clause 19 of Annexure A). On reconsideration, it
decided to omit the clause — Sub-Committee Minutes, April 15, 1947, Select
Documents II, 4(vii), p. 169.

^Munshi’s draft, article VI, clauses (6) and (7). Select Documents 11, 4(ii) (b),
p. 76. These clauses were reproduced in substance in clauses 21 and 22 of the
Report of the Fundamental Rights Sub-Committee. The Advisory Committee also
laid down in clause 17 of its Interim Report on Fundamental Rights that conversion
brought about by coercion or undue influence would not be recognized by law.
This was the subject of a heated discussion in the Constituent Assembly on May I,
1947 and was referred back to the Advisory Committee. The committee felt on
further consideration that the clause enunciated a rather obvious doctrine and
recommended that It be dropped altogether. Select Documents II, 4 and 7, pp. 174,
298, 305; C. A, Deb,, Vol. Ill, pp. 480-96 and Vol VI, p. 361.

^Kirpans: The Sikhs were enjoined by their religion to abjure tobacco and wear
the flve Ks — Kesk (long hair), Kangha (a comb), Kuchha (shoits), Kara (a steel or
iron bangle), and Kir pan (a small steel dagger).

FUNDAMENTAL RIGHTS

sub-committee further qualified the right to profess and practise religion
by laying down that it would also be subject to the other provisions
relating to fundamental rightsh The recommendations of the sub-
committee were set out in clauses 16, 17, 18, 19 and 20 of its draft report
of April 3, 1947.

16. All persons are equally entitled to freedom of conscience and the right
freely to profess and practise religion subject to public order, morality or
health and to the other provisions of this chapter.

Explanation 1 : The wearing and carrying of kirpans shall be deemed to
be included in the practice of the Sikh religion.

Explanation II : The right to profess and practise religion shall not include
any economic, financial, political or other secular activities that may be
associated with religious worship.

Explanation III : No person shall refuse the performance of civil obligation
or duties on the ground that his religion so requires.

17. Every religious denomination shall have the right to manage its own
affairs in matters of religion and to own, acquire and administer property,
movable and immovable, and to establish and maintain institutions for
religious or charitable purposes consistently with the provisions of this
chapter.

The right to build places of worship in any place shall not be denied except
for reasonable cause.

18. No person may be compelled to pay taxes the proceeds of which are
specifically appropriated to religious purposes.

19. The State shall not recognize any religion as the State religion.

20. No person attending any school maintained or receiving aid out of
public funds shall be compelled to take part in the religious instruction
that may be given in the schooP

Some of the members expressed in their comments serious misgivings about
the implications of clause 16. Alladi Krishnaswami Ayyar, in his letter to
B. N. Rau of April 4, 1947, said that in view of the wide import that might
be given to the word “religion”, clause 16 might have the effect of invalidating
all existing social reform legislation as well as prohibiting such legislation
for the future. That an apprehension of this sort was not ill-founded was

^Sub-Committee Minutes, March 26 and 29, 1947, Select Documents 11, 4(iii),
pp. 122-3, 13L

^Select Documents II, 4(iv), pp. 140. Clause 16 was adapted from the Irish
Constitution, section 44(2)1® while Explanation 11 of the clause was based on the
recommendations of the All-Parties Conference, 1928. Explanation III was adapted
from the Yugoslavian Constitution — Article 12, paragraph 2, omitting reference to
military obligations. Clauses 17 and 18 were adaptations of section 44(2)5® of the
Irish Constitution and Article 49, paragraph 6, of the Swiss Constitution, respectively.
Clause 20 was also based on the recommendations of the All-Parties’ Conference
and was comparable to section 44(2)4® of the Irish Constitution. F/Je B, N. Rau’^
Notes on clmsm, Select Documents II, 4(v)(c), p. 149.

260

FRAMING OF INDIA’S CONSTITUTION

clear, he said, from the full discussion of section 116 of the Australian
Constitution relating to freedom in matters of religion, in the judgment of
Chief Justice Latham in Jehovah’s Witnesses case:

The Commonwealth shall not make any law for establishing any religion,
or for imposing any religious observance, or for prohibiting the free
exercise of any religion, and no religious test shall be required as a
qualification for any office or public trust under the Commonwealth.

The issue for decision by the court was whether in the interests of national
security it was legal to declare certain bodies, including the Adelaide
Company of Jehovah’s Witnesses, Inc., as prejudicial to the defence of the
Commonwealth and the prosecution of the war. It was contended on behalf
of the company that this order contravened the provisions of section 116.
While holding tliat the declaration was legal. Chief Justice Latham made
certain observations to which Alladi Krishnaswami Ayyar drew attention.
Since section 116, Latham said, referred in express terms to the exercise
of religion, it was intended to protect from the operation of any law acts
which were done in the exercise of religion. It went far beyond protecting
liberty of opinion ; it protected also acts done in pursuance of religious belief
as part of religion. Latham went on to refer to the fact that at all periods
of human history there have been religions which have sanctioned practices
regarded by large numbers of people as essentially evil and wicked and the
complete protection of all religious beliefs might result in the disappearance
of organized society. He observed:

When a slogan is incorporated in a constitution, and the interpretation of
the slogan is entrusted to a court, difficulties will inevitably arise.

Alladi Krishnaswami Ayyar urged that a suitable rider or explanation
might be inserted in the clause explicitly saving measures of social reform^
Similar apprehensions were expressed in a letter which Rajkumari Amrit
Kaur sent to B. N. Rau on March 31, 1947, on behalf of Mrs. Hansa Mehta
and herself. The two women members felt that clause 16 as worded would
not only render impossible the enactment of future legislation for eradicating
several customs practised in the name of religion, child-marriage,

polygamy and unequal laws of inheritance, but it might also conflict with
the provision relating to the abolition of untouchability. They therefore
suggested that the freedom envisaged in the clause should be restricted to
''religious worship” in place of the much wider concept of “practice of
religion”". The suggestion found favour with the sub-committee which
modified clause 16 to read :

All persons are equally entitled to freedom of conscience, to freedom of
religious worship and to freedom to profess religion subject to public
order, morality or health and the other provisions of this chapter,

^Select Documents II, 4(v)(a), pp. 143-6.
nm, n, m (b), pp. i46-7.

FUNDAMENTAL RIGHTS

261

The sub-committee also omitted clause 19 and amplified draft clause 20
so as to make it clear that nO' one attending a State-aided school could be
compelled either to take part in religious instruction or attend religious
worship held in the school. With these changes,, the clauses relating to
freedom of religion in the draft report were reproduced as clauses 16 to 19
in the final report of the sub-committee^

The Minorities Sub-Committee considered this clause on April 19, 1947.
The sub-committee accepted the suggestion made by M. Ruthnaswamy that
certain religions like Christianity and Islam were proselytizing religions and
that they should be permitted to propagate their faith. The sub-committee
accordingly recommended a redraft of clause 16 which not only restored
the right to free practice of religion but also secured an additional right to
propagate religions

Thus, when the Advisory Committee met on April 22, 1947, to formulate
its recommendations on the right to freedom of religion, it had to consider
the relative merits of the alternative drafts of clause 16 proposed by the
two sub-committees. The first question for consideration was whether the
scope of the clause should be confined to guaranteeing freedom of worship
or extended to the free practice and propagation of religion. One view was
that, while the exclusion of the words “religious practice’’ would create
considerable difficulties, inasmuch as the expression “religious worship”
would not take within its ambit certain religious practices, its inclusion would
not, in fact, preclude the State from taking the necessary steps to prevent
the observance of any religious practice that might be considered undesirable
on grounds of public order, morality or health. Tlie other view was that
the enlargement of the clause to include practice of religion would not only
militate against social reform legislation, but also accord sanction to such
practices as the killing of cows, indulging in music before mosques, etc.,
which had been responsible for communal and class hatred in the past.
Ultimately, the former view, which also received support from some members
belonging to the minority communities,, prevailed. However, having agreed
to provide a constitutional guarantee for the free practice of religion, the
members felt the need for a suitable proviso permitting the State to carry out
social reforms. The Chairman, Vallabhbhai Patel, entrusted the task of
drafting such a provision to Rajagopalachari and Syama Prasad Mookerjee.
On the basis of their recommendation, the committee decided to add to the
clause a new explanation providing that the freedom of religious practice
would not “debar the State from enacting laws for the purpose of social
welfare and reform’”.

^Select Documents II, 4(viu), pp. 169-76.

Tnterim Report of the Sub-Committee on Minorities, April 19, 1947, Select

Documents H, 5(ii), p. 209.

^Select Documents II, 6(iv) and (v); and 7(i), pp. 264-7, 290, 298.

262

FRAMING OF INDIANS CONSTITUTION

The second question was whether or not the right to propagate religion
should be included in the clause. Some members said that this right was
already covered by the clause relating to freedom of speech and expression*.
When however a vote was taken, it was decided to retain the right to
propagate religion and this was incorporated in clause 16 as adopted by the
committee.

In regard to clause 17 relating to freedom to manage religious affairs, there
was only a brief discussion in the committee. Some members, doubting the
need for authorizing religious denominations to hold property as a
fundamental right, suggested the deletion of the clause. Munshi maintained
that the consequence would be to render religious freedom meaningless. Frank
Anthony urged that the clause was vital so far as the Christian community
was concerned. Tlie committee adopted a compromise by accepting a
suggestion, made by Rajagopalachari, that the clause might be retained
but with the qualification that the right of religious denominations
to own, acquire and administer property would be subject to the general
law.

There was little discussion on clause 18. On a suggestion made by
Rajagopalachari, the committee decided to replace the words “religious
purposes” in this clause by the words “to further or maintain a particular
religion or denomination”.

Clause 19 was adopted in the form in which it was recommended by the
Sub-Committee on Fundamental Rights. With these changes, the clauses
relating to religious freedom recommended by the Fundamental Rights
Sub-Committee were reproduced by the Advisory Committee as clauses 13
to 16 in its Interim Report on Fundamental Rights".

All the clauses were moved in the Constituent Assembly for adoption on
May 1, 1947. There was not much discussion and the few amendments
that were suggested were carried without controversy. To clause 13 relating
to the free profession and practice of religion, Munshi moved an amendment
which in effect sought to ensure that the freedom of religious practice did
not come in the way of laws for throwing open Hindu religious institutions
of a public character, especially temples, to all classes and sections of
Hindus. The amendment was accepted by the Assembly and clause 13
adopted as so amended. In regard to clause 14 dealing with freedom to
manage religious affairs, an amendment, also moved by Munshi, which
made it clear that the freedom to manage religious affairs was available
not only to religious denominations but also to sections of such

'Clause 8(a) of the Advisory Committee’s Interim Report on Fundamental Rights.
Select Documents^ II, 7(i), p. 300. The corresponding provision in the Constitution is
article 19(lXa).

Advisory Committee Proceedings, April 22, 1947. Interim Report, Annexure,
Docamentj II, 6(iv) and 7(i), pp. 267-70, 298.

FUNDAMENTAL EIGHTS

263

deiiominations, was accepted, and clause 14 so amended was adopted.
Clause 15 was adopted without any changed
Clause 16 provided that no person attending any school maintained by the
State or receiving State aid could be compelled to take part in religious
instruction or attend religious worship. This clause was referred back to
the Advisory Committee on the suggestion of Vallabhbhai Patel who saw
some difficulties with regard to it. The committee did not on reconsideration
find it necessary to suggest any changes in the clause and recommended
its acceptance by the Assembly in the form originally proposed^ When the
clause again came up before the Assembly on August 30, 1947, several
members considered that the clause did not go far enough and lent their
support to an amendment, moved by Mrs. Renuka Ray, which proposed
the following in substitution :

No denominational religious instruction shall be provided in schools
maintained by the State. No person attending any school or educational
institution recognized or aided by the State shall be compelled to attend
any such religious instruction®.

Mrs. Ray explained that the object of her amendment was to place beyond
doubt a principle on which there could be no two opinions, namely, that a
secular democratic State could not impart instruction of a denominational
character in institutions run by the State. This amendment received general
support. Radhakrishnan in his brief speech explained clearly why it was
necessary that a distinction should be drawn, as was done in Mrs. Ray’s
amendment, between schools maintained by the State and those which were
aided from State funds :

. . .We are a multi-religious State and therefore we have to be impartial
and give uniform treatment to the different religions ; but if institutions
maintained by the State, that is, administered, controlled and financed by
the State, are permitted to impart religious instruction of a denominational
kind, we are violating the first principle of our Constitution. On the other
hand if we say that aided institutions may impart religious instruction, we
protect the people against the violation of their religious conscience by
saying that they shall not be compelled against their will to join classes on
religion.

Kunzra went further and said that to allow religious instruction in State
schools meant accepting the principle of State religion^ K. M. Munshi
and Vallabhbhai Patel, on the other hand, found some practical difficulty in
agreeing to this principle in the "‘pi’es^nt condition of India unless we are
all unanimous on the point”. The new federation would be a secular and

VoL in,:pp;'4^^^ '

^Supplementary Report of the Advisory Committee, para 4, Select Documents II,
7(iv), pp. 304-5.

^aA,De3.,VoLV,p,380.
mid.> pp. 387-9a

264

FRAMING OF INDIA’S CONSTITUTION

democratic State ; the Provinces would also not be religious States; but
the Indian States were not all secular and democratic and the enunciation
ot the principle would affect them. Unless they were willing, it would not
be right to lay it down as a fundamental right enforceable through legal
processes in their territories. Munshi added the further legal argument that
the object of the clause as submitted to the Assembly was to ensure that
no school recognized or aided by the State would compel any student to
receive religious instruction against his will. The proposition now moved
was a different one, that in schools controlled, owned and maintained by
the State, religious education was to be prohibited. He suggested that this
second matter could be considered later, if necessary ; meanwhile, the
Assembly might approve the proposal actually before it, not to compel a
student to attend classes for religious instruction'.

After some further debate it was decided to refer the matter to a committee
consisting of Mohan Sinha Mehta, Hriday Nath Kunzru, Hussain Imam, S.
Radhakrishnan, Mrs. Renuka Ray and K. M. Munshi. The committee was
to report to the Drafting Committee®.

This committee recommended to the Drafting Committee that a specific
provision should be included to the effect that religious instruction should
not be permitted in schools run by the State.

With a few minor changes and drafting adjustments these provisions were
reproduced in the Constitutional Adviser’s Draft Constitution as clauses 20
to 23. Of these, clauses 20 to 22 were, with a few further modifications of
a drafting nature, reproduced by the Drafting Committee in its Draft
Constitution as articles 19 to 21 :

19. (1) Subject to public order, morality and health and to the other
provisions of this Part, ail persons are equally entitled to freedom of
conscience and the right freely to profess, practise and propagate religion.
Explanation : The wearing and carrying of kirpans shall be deemed to be
included in the profession of the Sikh religion.

(2) Nothing in this article shall affect the operation of any existing law or
preclude the State from making any law —

(a) regulating or restricting any economic, financial, political or other
secular activity which may be associated with religious practice;

(b) for social welfare and reform or for throwing open Hindu religious
institutions of a public character to any class or section of Hindus.

20. Every religious denomination or any section thereof shall have the
right-—

(a) to establish and maintain institutions for religious and charitable
purposes ;

(b) to manage its own affairs in matters of religion ;

A. Deb,, VoL V, pp. 385-91.
mid., pp. 393, 402.

FUNDAMENTAL RIGHTS

265

(d) to administer such property in accordance with law.

21. No person may be compelled to pay any taxes, the proceeds of which
are specifically appropriated in payment of expenses for the promotion or
maintenance of any particular religion or religious denomination.

In regard to clause 23 (formerly paragraph 16), the Drafting Committee
accepted the recommendation that religious education should not be permitted
in State schools. Accordingly, article 22 of the Draft Constitution read :

22. (1) No religious instruction shall be provided by the State in any
educational institution wholly maintained out of State funds :

Provided that nothing in this clause shall apply to an educational
institution which is administered by the State but has been established
under any endowment or trust which requires that religious instruction shall
be imparted in such institution.

(2) No person attending any educational institution recognized by the
State or receiving aid out of State funds shall be required to take part in
any religious instruction that may be imparted in such institution or to
attend any religious worship that may be conducted in such institution or
in any premises attached thereto unless such person, or if such person is a
minor, his guardian has given his consent thereto.

(3) Nothing in this article shall prevent any community or denomination
from providing religious instruction for pupils of that , community or
denomination in an educational institution outside its working hoursk

When the Draft Constitution was circulated for eliciting opinion, many
comments and suggestions were made in regard to the provisions relating
to freedom of religion. Of those sent by members, one reiterated the demand
for the inclusion of a specific provision prohibiting the recognition of any
religion as a State- religion and two others aimed at modifying the right
conferred by article 19 to “profess and practise” but not to propagate religion.
There' was also an amendment by Ramalingam Chettiar for recasting
clause (2) of draft article 22. Under article 22(2), as it stood, attendance in
classes for religious instruction or worship could be made obligatory on a
minor pupil if his guardian consented ; under the amendment proposed it
could not be made obligatory at all. Two amendments were suggested- by
Patlabhi Sitaramayya seeking (i) to replace the words “any class or section”
in clause (2) (b) of article 19 by the words “all classes and sections”, and
(ii) to limit the right to manage religious affairs, provided in article 20, by
making it subject to public order, morality and health; and Tajamul Husain
proposed an amendment to delete the words “by the State” in clause (1) of
article 22. , .T^ amendments were accepted by the ■ Drafting'

Committee.

From amongst non-members, the editor of the Indian Law Review
^Select Documents III, l(i) and 6, pp. 10-1, 524-5.

FRAMING OF INDIANS CONSTITUTION

some members of the Calcutta Bar suggested an amendment to sub-clause (b)
of clause (2) of article 19 which would in effect have widened the scope
of the sub-clause so as to permit the throwing open of all religious institutions
and not merely those of the Hindus. The Asthika Sabha of Madras and
several other institutions sent representations that article 19(2) would seriously
interfere ' with the religious rights of the citizens. Commenting on these
representations, B. N. Rau said that the criticisms represented the orthodox
point of view which had been fully considered before article 19(2) was
formulated and that the provisions of the article were essential in the
interests of social reform. Jaya Prakash Narayan proposed the incorporation
of a new article prohibiting the use of religious institutions for political
purposes as well as the setting up of political organizations on a religious
basis'. '

Draft articles 19 to 22 were discussed in the Constituent Assembly on
December 3, 6 and 7, 1948. In regard to draft article 19, a number of
amendments werC' moved. Ambedkar proposed tuat the word “preclude” in
clause (2) be replaced by the word “prevent”. Mrs. Durgabai, with a view
to widening the benefit of clause (2) (b), brought an amendment for replacing
the words “any class or section” by the words “ail classes or sections”.
■K. T. Shah moved an amendment embodying his view that the State should
have the power “positively' and absolutely” to prohibit — not merely to
regulate or restrict — financial, economic and other secular activities associated
with religious practice. He mentioned that such activities had been known
to . be of a degrading character.

Nothing has caused more popular disfavour of some of the most well-known
and widely spread religions in the world than the association of those
religions with secular activities and with excesses that are connected wi'th
those activities.

: On the other hand, a Muslim member, Mohamed Ismail, suggested the
addition' of a new clause securing a citizen the right to follow his personal
law against any legislative interference that might be attempted under clause
(2) in the name of regulating secular activities associated with religion. Yet
another amendment, moved by H. V. Kamath, proposed the addition of a
new clause, the first part of which prohibited the establishment, endowment
or patronage of any religion by the State, while the second part left the
"door open to the State to impart spiritual training or instruction to citizens.
The first proposition, he said, was necessai^ if the country was to be saved
from rifts and internecine feuds. The second, as he put it, related to the
deeper import of religion— the eternal, values of the spirit' which could .be
imparted by the State without violating the principle of seciilarisml

Comments and Suggestions on the Draft Constitution, Select Documents IV, l(i),
pp. 41-4. .

C. A, Deb., VoL VII, pp. 824-30.

I^UNDAMENTAL RIGHtS

26 ?

Much of the controversy on the article centred round the right to
‘“^propagate” religion. Tajamul Husain urged that religion was a private
affair between oneself and one’s creator and it had nothing to do with others
and therefore the right to propagate religion ^ was wholly unnecessary: all
that the individual needed was the right “to profess and practise religion
privately”. He felt that propagation of religion had proved a “nuisance”
in the country. An amendment suggesting the deletion of the w^ord
“propagate” from clause (1) was moved and the demand was forcefully
pressed by Lokanath Misra who held that the aim of propagation of religion
was political that religious propagation had been responsible for the
unfortunate division of the country into India and Pakistan and that its
acceptance as a fundamental right would not therefore be right. In no
constitution of the world, he said, was the right to propagate religion
recognized as a fundamental and justiciable right. He added that while
people might propagate their religion, if they wanted to, there was no
justification for putting it in the Constitution as a fundamental right and
thereby encouraging it\

The amendment was opposed by many members. A common point made
by some of them was that the right to propagate religion, as formulated
in the article, was not absolute ; it was circumscribed by certain conditions
that the State would be free to impose in the interests of public order, morality
and health. It had also been laid down that the exercise of the right should
not conflict with the other provisions relating to fundamental rights. In
particular, the article did not give an unlimited right of conversion, for if
any attempts were made to secure mass conversions through undue influence
either by money or through pressure, the State had the right to regulate such
activity. In view of these safeguards, the inclusion of the word “propagate”
could not possibly have any “dangerous implications”, especially since under
the secular set-up envisaged in the Constitution there would be no particular
advantage to a member of one community over another, nor would there be
“any political advantage by increasing one’s fold”. T. T. Krishnamachari
stressed the point that the right was not given to any particular community
and could be exercised by everyone so long as the conditions laid down were
respected. Munshi asserted that even if the word “propagate” was not
included in draft article 19, under the right to freedom of speech and
expression guaranteed by draft article 13, it would still be open to a religious
community to persuade other people to join its faithl

Put to vote, the amendments moved by Ambedkar and Mrs. Durgabai
were accepted and the draft article adopted, as so amended^

A. Dek, Vol. VII, pp. 817-8 and 822-4.

Hbid., pp. 831-8: speeches of Lakshmi Kant Maitra, Santbauam, Krishnamachari
and Munshi.

nbid., p. 840.

268

FRAMING OF INMA’S CONSTITUTION

Draft articles 20 and 21 proved non-controversial and the Assembly
adopted them without much discussion. To draft article 20, an amendment
was moved by Ambedkar seeking to insert the words “subject to public
order, morality or health” with a view to clarifying that the State could
regulate the administration of religious institutions and properties when public
order, morality or health required it. Neither this nor the few other
amendments that were moved evoked any discussion. In fact, except Jaspat
Roy Kapoor, who felt that the idea of conceding to religious denominations
the fundamental right to establish charitable institutions exclusively for the
benefit of their own members was repugnant to the ideas of fraternity and
common nationality, no member had any serious objection to the articles.
The Assembly accepted Ambedkar’s amendment, and draft article 20 was
adopted as so amended*.

In regard to draft article 21, Abdur Rouf wanted it to be made clear
that even when the proceeds of a tax were partially appropriated for religious
purposes there should be no compulsion for its payment. He moved an
amendment for the purpose. Ananthasayanam Ayyangar thought that the
wording of the draft article was quite adequate and covered partial
appropriations also. Describing the draft article as “part and parcel of the
Charter of liberty and religious freedom”, he stressed the point that a secular
State was expected to view all denominations in the same light, and not
to give encouragement to any one of them at the expense of others. Without
further discussion and without any changes the Assembly adopted the
articled

Draft article 22, in spite of the time and the attention that had gone
into its drafting in the committees, gave rise to sharp differences of opinion
and was debated at length. A number of amendments were moved.
Ambedkar sought the deletion of the words “by the State” from clause (1).
The retention of these words, he explained, might lead to the construction
that the article permitted “institutions other than the State” to give religious
instruction in educational institutions wholly maintained out of State funds.
This was not the intention, and the amendment made it clear that so far as
State educational institutions were concerned they could in no case be used
for the purpose of religious instruction. Jaspat Roy Kapoor proposed the
deletion of clause (3). He advanced four reasons in support of his
amendment ; (i) the clause, which permitted religious instruction in
educational institutions outside working hours, conflicted with clause (1)
which laid down that no such instruction could be imparted in educational
institutions wholly maintained by the State ; (ii) the clause was likely to
create conflicts between different religious denominations, because all of
them might claim the right to impart reUgious instruction to their pupils in

■C. A. Deb., Vol. VII, pp. 859-64.

■^Ibid., pp. 864-6.

FUNDAMENTAL RIGHTS

269

an institution at the same time ; (iii) the management of a denominational
institution might not like the imparting of religious instruction of other
religions in its premises; and (iv) the clause was unnecessary in view of clause
(2)\ The other amendments represented, broadly speaking, two different
points of view. One view was that there ought to be no bar to religious
instruction being given in educational institutions' — not even in those
exclusively ran by the State — so long as no one was compelled to accept
such instruction. Mohamed Ismail, who represented this point of view, said
that the stability of society as well as of the State could be secured through
a moral background which religion alone could provide, and it was in the
interest of the State itself to give children a grounding in religion. The
imparting of religious instruction by the State would in no way contravene
the neutrality or the secular nature of the State. He moved an amendment
which, while prohibiting compulsion for securing attendance for religious
instruction in educational institutions, left it to the discretion of the State to
introduce such instruction in its schools^

The second view was that religious instruction should be l^anned not only
in educational institutions wholly maintained out of State funds, but also in
those which were aided or partly maintained by the State. An amendment
to give effect to this view was moved by K. T. Shah who said that the
draft article as it stood would mean that even if ninety-nine per cent of
the total bill of a school v/as met out of State funds and only one per cent
out of some private endowment, there could be no bar to religious instruction
being imparted in that institution; such a development would not only be
inconsistent with the basic principle of secularism but would also lead to
conflicts and controversies in educational institutions which would be
converted into a “menagerie of faiths”^

An interesting point was raised by Kamath who suggested deletion of the
words “recognized by the State” from clause (2) of the article. He pointed
out that while clause (2) laid down that no person attending an institution

recognized by the State or receiving aid out of State funds would be

compelled to take part in religious instraction, draft article 23(3) (a)"

provided that all minorities, whether based on religion or community or

language, would have the right to establish and administer educational
institutions of their choice. Suppose, he queried, an educational institution
so established by a minority community insisted on students’ attendance at
religious classes, would it be open to the State to withdraw recognition from
it ; and if the State did withdraw or refuse recognition, would it be fair or
understandable? In any case,, he said, such a refusal or withdrawal of

A, Deb,, Vol. VII, pp, 871 and 874-5,
f>p. 866-7, 875-6.

Hbul, pp. 868-70.

^Corresponding provision in the Constitution: article 30(1),

270

FRAMING OF INDIA’S CONSTITUTION

recognition could hardly be reconciled with the right of the minorities to
establish and maintain educational institutions of their choice'.

Ananthasayanam Ayyangar, who supported the article, dealt with the
objection raised by K. T. Shah. He emphasized that it was not obligatory
upon the State to give its grants irrespective of the way an educational
institution was being run”.

EHiring the general debate on the article, Kapoor’s amendment for the
deletion of clause (3) received wide support, and Ambedkar, in his reply
to an animated debate, accepted this amendment. He was not willing to
accept any of the other amendments. He explained why the demand that
religious instruction should be permitted in State educational institutions
could not be accepted. In the first place, the acceptance of this suggestion
would mean that a local authority would be free to use its revenues from a
general tax to provide instruction in its schools in the religion of the majority
community of the area. Should this happen, it would amount to an abuse
of draft article 21, because the minority communities of the area, who would
have no interest in such religious instruction, would nonetheless be compelled
to contribute to the funds of the local authority. Secondly, in view of the
multiplicity of religions and sects in the country, if educational institutions
were to be required to treat all children belonging to different denominations
on a footing of equality and to provide religious instruction in all
denominations, it would be asking the State to do the impossible. Finally,
it would be disturbing the peaceful atmosphere of an educational institution
considerably if controversies with regard to the teachings of a particular
religion were raised within its precincts’.

As regards clause (2), Ambedkar said that it achieved two purposes. Firstly,
it permitted a community to give religious instruction in an educational
institution which it had established for the advancement of its religious and
cultural life, even though it received some aid from the State ; and secondly,
it prohibited compulsion on students who did not belong to that community
to accept such instruction. Replying to the point raised by Kamath,
Ambedkar said that, in schools run by a community exclusively for the
pupils of that community, attendance for religious instruction could be
compulsory. However, once an educational institution got a grant from the
State, it was bound to keep the school open to all communities’.

The amendments moved by Ambedkar and Kapoor were accepted by the
Assembly and aU others rejected and article 22 was adopted with these
amendments.

Subsequently, at the revision stage, the Drafting Committee added a new

1C. A. Deb., Vol. VII, pp. 873-4.

’Ibid., pp. 881-2.

V6W., pp. 883-4.

’Ibid., pp. 884-5,

FUNDAMENTAL RIGHTS

271

Explanation II in draft article 19 making it clear that the reference to Hindus
(in the context of social reform and welfare and the throwing open of
religious institutions of a public character to all classes and sections of
Hindus) would include also persons professing the Sikh, Jaina or Buddhist
religion ; and draft articles 19 to 22 were renumbered as articles 25
to 28 :

25. (1) Subject to public order, morality and health and to the other
provisions of this Part, ail persons are equally entitled to freedom^ of
conscience and the right freely to profess, practise and propagate religion.
(2) Nothing in this article shall affect the operation of any existing law or
prevent the State from making any law —

(a) regulating or restricting any economic, financial, political or other
secular activity which may be associated with religious practice;

(b) providing for social welfare and reform or the throwing open of
Hindu religious institutions of a public character to all classes and sections
of Hindus.

Explanation 1: The wearing and carrying of kirpans shall be deemed to
be included in the profession of the Sikh religion.

Explanation II : In sub-clause (b) of clause (2), the reference to Hindus
shall be construed as including a reference to persons professing the Sikh,
Jaina or Buddhist religion, and the reference to Hindu religious institutions
shall be construed accordingly.

26. Subject to public order, morality and health, every religious
denomination or any section thereof shall have the right —

(a) to establish and maintain institutions for religious and charitable
purposes ;

(b) to manage its own affairs in matters of religion ;

(d) to administer such property in accordance with law.

27. No person shall be compelled to pay any taxes, the proceeds of which
are specifically appropriated in payment of expenses for the promotion or
maintenance of any particular religion or religious denomination.

28. (I) No religious instruction shall be provided in any educational
institution wholly maintained out of State funds.

(2) Nothing in clause (1) shall apply to an educational institution which is
administered by the State but has been established under any endowment
or trust which requires that religious instruction shall be imparted In such
institution.

(3) No person attending any educational institution recognized by the
State or receiving aid out of State funds shall be required to take part in
any religious instruction that may be imparted in such institution or to attend
any religious worship that may be conducted in such institution or in any
premises attached thereto unless such person or, if such person is a minor,
his guardian has given his consent thereto.

272

FRAMING OF INDIA’S CONSTITUTION

CULTURAL AND EDUCATIONAL RIGHTS
Articles 29-30

Protection of interests of minorities {Article 29)

Right of minorities to establish and administer educational
institutions {Article 30)

A guarantee of the protection of the cultural and educational rights of
linguistic and religious minorities was contained in the drafts prepared by
K. M. Munshi, K. T. Shah and Harnam Singh\ When the question came
up before the Sub-Committee on Fundamental Rights on March 27, 1947,
it was felt that guarantees of this kind more appropriately fell within the
scope of the Minorities Sub-Committed^ The latter considered this matter
on April 19. 1947, and recommended the following for incorporation among
the fundamental rights in the Constitution :

(i) All citizens are entitled to use their mother tongue and the script
thereof, and to adopt, study or use any other language and script of their
choice.

(ii) Minorities in every unit shall be adequately protected in respect of
their language and culture, and no Government may enact any laws or
regulations that may act oppressively or prejudicially in this respect.

(iii) No minority, whether of religion, community or language, shall be
deprived of its rights or discriminated against in regard to the admission
into State educational institutions, nor shall any religious instruction be
compulsorily imposed on them.

(iv) All minorities, whether of religion, community or language, shall be
free in any unit to establish and administer educational institutions of their
choice, and they shall be entitled to State aid in the same manner and
measure as is given to similar State-aided institutions.

(v) Notwithstanding any custom, law, decree or usage, presumption or
terms of dedication, no Hindu on grounds of caste, birth or denomination
shall be precluded from entering in educational institutions dedicated or
intended for the use of the Hindu community or any section thereof.

(vi) No disqualification shall arise on account of sex in respect of public
services or professions or admission to educational institutions save and
except that this shall not prevent the establishment of separate educational
institutions for boys and girls^

^Munshi’s draft, article VI, (3) and (9); Shah’s draft, article 18; Harnam Singh’s
draft articles 16 and 19. Select Documents II, 4(ii)(b), II, 2(ii) and II, 4(ii)(c) pp 76
50-1, 82. ’ " * '

^Minutes. Select Documents II, 4(iii), p. 125.

interim Report of the Minorities Sub-Committee, Select Documents II 5(ii)

p.m ■ ’ ■

/■‘ FUNDAMENTAL RIGHTS

273

, Tracing the genesis of the clause guaranteeing to every citizen the right
■to use his mother tongue, Munshi said in the Advisory Committee on April 22,
1947, that this was based on minorities’ rights contained in the Polish
Treaty which later came to form part of the Constitution .of Poland. Attempts
had been made in Europe and elsewhere to prevent the . minorities from
using or studying their own, language, and the right to use one’s language
had come to be regarded as a classical right of the minorities.

Govind Ballabh Pant suggested that the rights recommended by the
sub-committee could more appropriately be incorporated as directive
principles which would be kept in view by the Legislature but would not be
enforceable in a court of law. This was opposed by Munshi who said that
the rights would lose all their efficacy if they were made non-justiciable.
Ruthnaswamy and Sardar Ujjal Singh stated definitely that Pant’s proposal
would not be acceptable to the minorities. Finally, clauses (ii), (iii) and (iv),
as slightly modified, were adopted by the sub-committee, and clauses (i), (v)
and (vi) were deleted as redundant or out of place. These recommendations
were incorporated as clause 18 in its interim report:

18. (1) Minorities in every unit shall be protected in respect of their
language, script and culture, and no laws or regulations may be enacted
that may operate oppressively or prejudicially in this respect.

(2) No minority whether based on religion, community or language shall
be discriminated against in regard to admission into State educational
institutions, nor shall any religious instruction be compulsorily imposed on
them.

(3) (a) All minorities whether based on religion, community or language
shall be free in any unit to establish and administer educational institutions
of their choice.

(b) The State shall not, while providing State aid to schools, discriminate
against schools under _the management of minorities whether based on
religion, community or language\

On May 1 , 1947 , Vallabhbhai Patel moved the clause for the acceptance
of the Constituent Assembly. A suggestion was made by Mohanlal Saxena
to refer the entire clause back to the Advisory Committee for further
consideration ; and another by Munshi, to refer back only sub-clause (2).
Supporting the proposal of Mohanlal Saxena, Mahavir Tyagi said that the
Assembly should not commit itself to a particular policy towards the
minorities without first knowing whether the country was to be partitioned
and if so what treatment would be meted out to minorities in Pakistan or
any . other parts of India which might organize themselves separately.

^Rajkumari Amrit Kaur wanted the deletion of clause (iv) also on the ground
that it sought to perpetuate communal institutions in the countr>''. Advisory
Committee Proceedings and Interim Report, Select Documents II, 6(iv) and 7(i),
pp. 278-82, 298.

274

FRAMING OF INDIANS CONSTITUTION

Ambedkar did not agree to the suggestion to refer the clause back to the
committee. The reason advanced by Mahavir Tyagi ' meant that the rights
of minorities in India would be relative ; that is to say, we must wait and
see what rights the minorities would be given by the Pakistan Assembly
before' we determined the rights we would give to the minorities in India.
Ambedkar strongly deprecated this idea. In his view the rights of minorities
should be absolute rights and not subject to any consideration as to what
another party might like to do to minorities within its own jurisdiction. He
had no objection to sub-clause (2) being referred back to the Advisory
Committee for clarifying its scope in respect of State-aided institutions, about
which no mention had been made. But he asked that all the other clauses
should be discussed.

This view was accepted : sub-clause (2) was referred back to the Advisory
Committee and the rest of the clause adopted without any changed

Reporting on sub-clause (2) the Advisory Committee suggested one
modification — to delete the words ‘‘nor shall any religious instruction be
compulsorily imposed on them” for the reason that this principle had already
been covered by clause 16" of the committee’s interim reporf .

When on August 30, the Constituent Assembly took up for consideration
the redrafted sub-clause (2), three amendments were moved. Ahmed Ibrahim
suggested that the clause should not apply to State-aided educational
institutions maintained mainly for the benefit of a particular community or
section of the people. Mohanlal Sexena moved the adoption of a proviso
that no State aid should be given to any institution imparting religious
education unless the syllabus of such education was duly approved by the
State. Mrs. Furnima Banerji suggested that State-aided institutions should
also be included within the purview of the clause so as to make it obligatory
on them not to discriminate against any minority in the matter of admission.
The amendment was supported by Hussain Imam and Hriday Nath Kunzra.
It was emphasized that while there was no bar to any community maintaining
its own educational institutions, if such an institution wanted State aid it
must throw open its doors to members of all classes of persons irrespective
of their religion, community or language.

Munshi justified the sub-clause being restricted to educational institutions
maintained by the State. Mrs. Pumima Banerji’s amendment if adopted
might result in the closing down of thousands of such institutions run by
private charities. There was a large number of schools,, exclusively Hindu
or Muslim, run by private charities. Some of them received small grants
from the State. Questions of discrimination in institutions of this kind

Vol, III, pp. 497-504.

“Corresponding provision in the Constitution: article 2S; see under “Right to
Freedom of Religion”.

^Supplementary Report of the Advisory Committee, August 30, 1947. Seleci

Documents II, 7(iv), p. 305.

FUNDAMENTAL RIGHTS

275

■could best be. dealt with by the State Go-vernmeiits and Legislatutes through
administrative actio-n which could take local susceptibilities ^and conditions
into consideration. ^

, Ait the three amendments were rejected by the Assembly and sub-cla.use (2)
adopted without any modification, after Vallabhbhai Patel had pointed out
that this was “a simple non-discriminatory clause against the minorities in
the matter of admission to schools which are maintained by the State” and
that the question of extending the principle to State-aided institutions could
be left to the future legislatures, to be adopted wherever the conditions were
suitable^

The clause, as adopted by the Assembly, was incorporated by the
Constitutional Adviser in his Draft Constitution as clause 24 with some
drafting changes. Commenting on the , use of the term “minorities” in the
provision, he pointed out that the term had not been defined anywhere in
the Constitution and that the existing position was so vague that even the
declaration of a particular language as the national language could be said
to prejudice the interests of the minorities whose mother tongue happened
to be different. A comprehensive definition of “minorities” was difficult to
frame. They might be based on religion, community or language ; but to
leave a vague justiciable right to undefined minorities was also quite
unsatisfactory, B. N. Ran, therefore, suggested for consideration whether
the cultural and educational rights conferred by this provision should at
ail be made justiciable'.

The Drafting Committee deliberated on clause 24 on November 1 and 3»
1947, and revised its text twice, the most significant change being the
redrafting of sub-clause (1) — a change which later sparked off a heated and
prolonged controversy in the Assembly. As it appeared in article 23 of
the Draft Constitution, the text read :

(1) Any section , of the citizens residing in the territory of India or any
part thereof having a distinct language, script and culture of its own shall
have the right to conserve the same.

(2) No minority whether based on religion,, community or language shall
be discriminated against in regard to the admission of any person belonging
to such minority into any. educational institution maintained by the State.

(3) (a) All minorities whether based on religion, community or language
shall have the right to establish and administer educational institutions of
their choice.

fb) The State shall not, in granting aid to educational institutions,
discriminate against any educational institution on the ground that it is
under the management of a minority, whether based on religion,
community or !anguage\. '

^aA:Beb,,V6l.y,pp,m

^Select Documents III, l(i), and (ii), pp. 11, 200,

mid,, III, 6, pp. 525-6.

FRAMING OF INDIA’^S CONSTITUTION

A number of amendments and comments were received from members
and others in respect of this draft article. The Drafting Committee itself
suggested that in clause (1) for the words “language, script and culture” the
words “language, script or culture” be substituted. The amendment,
B. N. Ran pointed out in his notes, was necessary because there were sections
of people with a separate language and script but who had no separate
culture, and others who had a separate culture but no separate script or
language. To these, clause (1) in the form in which it was framed would
not afiord any protection. The Muslims in West Bengal did not differ from
the Hindus there in respect of their language and script but had a distinct
culture of their own; and the Andhras in Orissa had a language and script
of their own but not a culture different from that of the majority community.
Pattabhi Sitaramayya and others suggested that in clause (2) and sub-clauses
(a) and (b) of clause (3) after the word “religion” the words “caste, creed”
be inserted. This amendment, B. N. Rau observed, was not necessary since
the term “community” was wide enough to include “caste” and the term
“religion” covered “creed”. R. R. Diwakar, S. V. Krishnamoorthy Rao and
Mrs. Purnima Banerji, by their amendments, revived the earlier suggestion in
favour of extending clause (2) to State-aided institutions".

The Madras Legislative Council suggested that in clause (2), the words
“subject to the provisions of article S?”"" be added. B. N. Rau felt that
there was no conflict between articles 23 and 37 : article 23 dealt with
justiciable fundamental rights and article 37 with non-justiciable principles
of State policy*.

Commenting on the draft article Jay a Prakash Narayan said that the
secularization of general education was necessary for the growth of a
national outlook and unity. With this object in view he suggested two
amendments : (1) the cultural and educational rights guaranteed in the draft
article should be confined only to linguistic minorities, and (ii) denominational
and communal educational institutions should be forbidden except for the
purpose of the study of religion and oriental learning. Both the amendments,
B. N. Rau remarked, involved questions of policy. Acceptance of the second
amendment would adversely hit institutions established for the promotion of
education among the Anglo-Indian community under special endowments or
trusts and in addition would conflict with draft article 298" under which

^Comments and Suggestions on the Draft Constitution, Select Documents IV, I(i),
p. 45.

^“37. The State shall promote with special care the educational and economic
interests of the weaker sections of the people and in particular, the Scheduled Castes
and the Scheduled Tribes, and shall protect them from social injustice and all forms
of exploitation.” Corresponding provision in the Constitution : article 46.

^Comments and Suggestions on the Draft Constitution, Select Documents IV, i(i),
p. 45.

^Corresponding provision in the Constitution : article 337,

FUNDAMENTAL RIGHTS

277

special safeguards were provided for such institutions'.

The Drafting Committee expressed its acceptance of two amendments ;
one, suggested by itself, replacing the words “language, script and culture”
by the words “language, script or culture” in clause (1) and the other,
suggested by Diwakar, Krishnamoorthy Rao and Mrs. Pumima Banerji,
seeking to provide that State-aided educational institutions (as well as
State-owned institutions) should not discriminate against any minority in the
matter of admission.

t , . .

Draft article 23 came up before the Constituent Assembly for consideration
on December 7 and 8, 1947. Out of the forty-three amendments of which
notice had been given, only about a dozen were actually moved. The
amendment seeking to replace the words “language, script and culture”
in clause (1) by the words “language, script or culture”, accepted by the
Drafting Committee earlier, was moved on its behalf by Ambedkar,
Thakurdas Bhargava moved two amendments. By his first amendment, he
sought to redraft clause (2) to read :

No citizen shall be denied admission into any educational institution
maintained by the State or receiving aid out of State funds on grounds only
of religion, race, caste, language or any of them.

Explaining his amendment, Bhargava pointed out that it had three aims :
(i) to extend the right of admission to educational institutions to all citizens,
whether they belonged to the majority or the minority, so that no
unwarranted impression of the majority being discriminated against was
created : (ii) to provide that not only State-maintained institutions but also
those receiving aid out of State funds would be prohibited from practising
discrimination in the matter of admission; and (iii) to remove the word
“community” as it had no meaning and substitute it by the words “race
or caste” thereby widening the scope of the provision and ensuring that
CO discrimination was allowed on the score of caste, race, language or religion.
By his other amendment, Bhargava sought the omission of the word
“community” from clause (3) also“.

Among the. other amendments, one moved by Lokanath Misra sought
to emphasize the need for the State recognizing, protecting and nourishing
the spiritual heritage and the cultural unity of the country. He said that
the protection of the various cultures, languages and scripts, good in itself
as it was, must be taken only as a means to a common end, which was the
unity of the country*.

Damodar Swarup Seth, moving an amendment on lines similar to those
favoured by Jaya Prakash Narayan, suggested that the only minorities to be

'Comments and Suggestions on the Draft Constitution, Select Documents IV, l(i),
p. 46.

K:. A. Deb., Vol. VII, pp. 895, 897-9.

mid., p. 892.

278.

FRAMING. OF INDIANS CONSTITUTION

recognized should be those based on language ; recognition of minorities
based on religion or community was not in keeping with the secular character
of the State. Besides, if such minorities were ' recognized and granted the
right to establish and administer educational institutions of their own, it
would not only block the way to national unity but would also promote
conimunaiism and an anti-national outlook which had already produced
disastrous results in the past'. K. T. Shah felt that merely to provide for
the right to conserve one’s language, script or culture was not enough and
the right to develop the same should also be provided for. He also sought
to add a proviso to sub-clause (a) of clause (3) to the effect that no part
of the expenditure in connection with educational institutions maintained by
a minority would fall upon or be defrayed from the public purse and no
such institution or the instruction given therein would be recognized by the
State unless it complied with the courses of instruction, standards of
attainment, and other conditions laid down in the national system of
education^

Z. H. Lari moved two amendments. The first sought to restore in clause (1)
the language as recommended by the Advisory Committee and adopted
by the Assembly earlier,, by providing that minorities would be protected
in respect of their language, script and culture and that no law or regulation
might be enacted that might operate prejudicially or oppressively. By his
second amendment, as modified by Karimuddin and Begum Aizaz Rasul,
Lari proposed a specific provision to the effect that any minority having a
distinct language and script should be entitled to have primary education
imparted to its children through the medium of that language and script
subject to a substantial number of such students being available. He pointed
out that it was necessary in the interests of a minority as also of society at
large that primary education should be imparted through the medium of
one’s mother tongue. He regretted that at many places in the country such
opportunities did not exist for the minority community®.

During the general discussion, a number of members supported the draft
article. M. L. Chattopadhyay called it a great charter of rights for all the
linguistic minorities in the different Provinces of India. He expressed the
hope that the demand for linguistic distribution of Provinces that was being
raised in certain quarters v/ould to a large extent be satisfied by the draft
article and the minorities would also attempt to adapt themselves to the
language and culture of the Provinces they lived in. R. K. Sidhva held that
wherever an educational institution received State aid no religious education
should be allowed since there were many instances where in the name of
religion communal hatred was being taught. Jaipal Singh opposed the demand

L Vol. Vll, p. 899.

Hbid„ pp. 8% and 900.

pp. 893‘4 and 900-4.

FUNDAMENTAL RIGHTS

279

for redistribution of Provinces on the basis of language alone and welcomed
the draft article. Santlianam felt that the question of linguistic minorities
would remain a problem for many decades and might cause the country
a great deal of trouble. Referring to Lari’s amendment, he agreed that
wherever there were congregations of boys and girls having a distinct niother
tongue, it should be the aim of the Provincial Governments to see that schools
in that language were provided; but dealing with the practical difficulties
involved in incorporating this aim as a justiciable fundamental right,
Santhanam pointed out that at the moment only ten per cent of the people
in India received primary education ; in the directives of State policy it
had been provided that there should be universal primary education in
fifteen years but no one knew whether the financial and other conditions
would permit this. The acceptance of Lari’s amendment would require the
immediate establishment of primary education in the mother tongue for
every section of citizens. This would not be practicable and the amendment
was therefore unacceptable. All that could be agreed to for the time being
was to guarantee the right of minorities to establish their own schools if they
wished'.

Govind Ballabh Pant, intervening in the debate, emphasized that primary
education, in the event of its being made universal, would cost heavily and
it was necessary that the maximum possible use was made of the limited
resources available and as a first step attempts made to extend primary
education to the vast numbers of illiterate persons in the country.
Pant said :

If every school should have two or three sets of teachers. . . we would not
be able to introduce universal primary education — not to talk of compulsory
primary education — till doomsday.

Pant emphatically deprecated the tendency to link the question of the
language or the medium of instruction at the primary stage with the different
communities and asserted that there was no particular language attached to
the followers of any particular religion. It could never be a communal
or a minority problem. As for the facilities for primary education through
the mother tongue of any particular section of the people. Pant pointed out
that adequate arrangements would be made for the purpose at all places
where students were available in a substantial number^

These arguments left another influential member,. H. N. Kunzru, thoroughly
unconvinced. Kunzru pleaded for ''serious and sympathetic” consideration
and acceptance of Lari’s amendment which, represented the demand of the
Muslim community of the right to educate its children in and through the
Urdu language. He said it was one of the most important rights of the
mnoriries to have primary educatm^ through the medium of their own

"C. VoL VII, pp. 904-10.

Hbld.f pp, 9I3-5. .

280

FRAMING OF INDIA’S CONSTITUTION

language in areas where they formed a substantial proportion of the
populationh

Ambedkar, who replied to the debate accepted at the very outset the two
amendments moved by Thakurdas Bhargava redrafting clause (2) and
omitting the word “community” from clause (3). Rejecting all the other
amendments, Ambedkar dealt with the two questions raised by the
amendments of Lari. With regard to his first amendment which sought to
protect minorities from laws which might operate prejudicially or oppressively,
Ambedkar pointed out that the term “minority” was used in the earlier draft
not merely to indicate the minorities in the technical sense of the word but
also to cover minorities in the cultural and linguistic sense. For instance,
if a certain number of persons from Madras settled in Bombay, they would
be a cultural and linguistic minority. The article intended to give protection
in the matter of culture, language and script to all these persons. Since the
word “minority” was capable of a narrow interpretation and the intention
was to provide protection in the matter of culture, language and script in
a wider sense, the Drafting Committee had dropped the word “minority” and
used instead the phrase “any section of the citizens”. From another point of
view also, Ambedkar said the article was an improvement. The original
provision only cast a duty upon the State to protect the culture, script and
language of the minorities. It gave no fundamental right to these
communities. He added :

It only imposed the duty and added a clause that while the State may have
the right to impose limitations upon these rights of language, culture and
script, the State shall not make any law which may be called oppressive ;
not that the State had no right to make a law afiecting these matters, but
that the law shall not be oppressive. . . the protection granted in
the original article was very insecure. It depended upon the goodwill of
the State. The present situation as you find it. . . is that we have
converted that into a fundamental right, so that if a State made any law
which was inconsistent with the provisions of this article, then that. . .
law would be invalid^

Ambedkar also dealt with Lari’s amendment which sought to give
minorities a right to receive education in their mother tongue. He admitted
that there could be no dispute on the principle of this amendment. But he
pointed out the various practical difficulties involved in treating this as a
justiciable fundamental right. It was not desirable or proper that the
question whether in a particular school a substantial number of pupils was
available should be taken to a court of law.

Therefore my submission is that we should be satisfied with the fact that
it Is such a universal principle that no provincial Government can justifiably

^C. A. Deb., VoL VII, pp. 919-22.
'“’Ibid., p. 923.

FUNDAMENTAL RIGHTS

281

abrogate it without .damage to a considerable part of the population in
the matter , of ' its educational rights^ ■'

When after Ambedkar’s reply to the debate the amendments were put to
vote, only the one moved by Ambedkar himself and the two moved by
Bhargava and accepted by Ambedkar were adopted and all others were
negatived. Draft article 23 as amended was adopted".

Subsequently, at, the revision stage, the Drafting Committee divided the
article into two separate articles^ — article 29 comprising the first two clauses
and article 30 the third clause :

29. (1) Any section of the citizens residing in the territory of India or any
part thereof having a distinct language, script or culture of its own shall
have the right to conserve the same.

(2) No citizen shall be denied admission into any educational institution
maintained by the State or receiving aid out of State funds on grounds
only of religion, race, caste, language or any of them.

30. (1) All minorities, whether based on religion or language, shall have
the right to establish and administer educational institutions of their choice.
(2) The State shall not, in granting aid to educational institutions,
discriminate against any educational institution on the ground that it
is under the management of a minority, whether based on religion or
language.

RIGHT TO PROPERTY
Article 31

Compulsory acquisition of property {Article 31)

We have already noticed in connection with the discussions on article 21
(safeguarding life and personal liberty) that Munshi had in his draft of the
fundamental rights included a clause that no person would be deprived of
his life, liberty or property without due process of law. It had another
article which guaranteed the right to property to all citizens, corporations
and bodies, social, economic and religious. This article also laid down that
no soldier would be quartered in any house during peace time without the
consent of the owner ; that expropriation would be permitted only for public
reasons and on conditions determined by law and in return for just and
adequate consideration according to principles laid down by law; and that
the right to property included the right to free disposal of property, subject
to limitations imposed by law or usage in the interests of such owners as
were not capable of looking after their interests'\ A different attitude was

Vok VII, p. 924.

Hbid.i pp, 924-7.

^Munshi’s draft, articles V(4) and X(4). Select Documents II, 4(ii) (b), pp. 75, 78.

282

FRAMING OF INDIA’S CONSTITUTION

reiected iii K. T, Shah’s draft : it emphasized the right of the State to acquire
by lav/ private property held by an individual or a corporation ; the specific
obligation to pay compensation would arise only when property belonging
to a religious body was taken over* and in such cases the amount of
compensation was to be such as the State considered reasonable and
appropriate. No proprietary right was to . . be recognized in munitions
industries or , industries producing vessels and vehicles for war* in the soil
and' sub-soil, in minerals, forests and other forms of national . wealth like
rivers and waterfalls, and in other key industries and public utilities'.

The expression “due process of law” in relation to property rights was
considered by the Sub-Committee on Fundamental Rights on March 26, 1947.
It was pointed out during the discussion that if this was included as a
fundamental right, tenancy legislation which took away certain rights from
landlords and transferred them to tenants might be pronounced invalid
unless it contained provision for payment of compensation which the courts
regarded as just. However, it was decided by a majority that the clause
should be retained^.

Two days later, Munshi’s article dealing with the “Right to Property” came
up for consideration. The sub-committee decided, after some discussion, that
it would be better to include a provision on the lines of section 299* of the
Government of India Act, 1935.

As to the precise form in which such provision should be incorporated,
the discussion turned on (i) whether movable property should also be covered,

^Shah’s draft, articles 28-30 and 33 and 34. Select Documents II, 2(ii), pp. 52-3.

^Minutes, March 26, 1947, Select Documents If, 4(iii), p. 122.

^Section 299 read :

“(1) No person shall be deprived of his property in British India save by authority
of law.

(2) Neither the Federal nor a Provincial Legislature shall have power to make
any law authorising the compulsory acquisition for public purposes of any
land, or any commercial or industrial undertaking, or any interest in, or
in any company owning, any commercial or industrial undertaking, unless the
law provides for the payment of compensation for the property acquired and
either fixes the amount of the compensation, or specifies the principles on
which, and the manner in which, it is to be determined.

(3) No bill or amendment making provision for the transference to public
ownership of any land or for the extinguishment or modification of rights
therein, including rights or privileges in respect of land revenue, shall be
introduced or moved in either chamber of the Federal Legislature without
the previous sanction of the Governor-General in his discretion, or in a
chamber of a , Provincial Legislature without the previous sanction of the
Governor in his discretion,

(4) Nothing in this section shall affect die provisions of any law in force at
the date of the passing of this Act.

(5) In this section “land*' includes immovable property of every kind and any
rights in or over such property, and “undertaking” includes part of an
undertaking.”

FUNDAMENTAL RIGHTS

283

(ii) whether the expression “just compensation” should be substituted for
‘"compensation”, and (iii) whether the Legislature should be given the power
to ix the amount of. compensation. '•Finally, the sub-committee formulated
a provision which appeared as clause 27 in its draft report :

No property, movable or immovable, of any person or corporation, .
including .any interest in any commercial or industrial underta,kiiig, shall
be taken or acquired for public use unless the law provides for the
payment of just compensation for the property taken or acquired and
specifies the principles on which and the manner in which the
compensation is to be determined^

Commenting on the ‘"due process” and ""right to property” clauses, I
B. N. Rau observed that though admittedly a safeguard against predatory *
legislation, they might stand in the way of beneficent social legislation.
Similar guarantees contained in the Fifth Amendment to the Constitution
of the United States had given rise to a vast amount of litigation. Law^s
providing for the acquisition of private property, even for pressing national
needs, had been struck down by courts on the ground that they did not
provide for just compensation. The Constitution of Ireland had sought to
steer a middle course by explicitly authorizing the State as occasion required
to delimit by law the exercise of the right to private property so as to
reconcile it with the exigencies of the common good. B. N. Rau therefore
suggested the insertion of a new clause declaring that

the State may limit by law the rights guaranteed by sections 11, 16 and 27
whenever the exigencies of the common good so required
These views were shared by two members of the sub-committee, Rajkumari
Amrit Kaur and Mrs. Hansa Mehta. Tlie clause as it stood, they said,
might not only interfere with future legislation but also invalidate laws
already in fo^ce^ and they considered section 299 of the Government of
India Act sufficiently progressive\ K, T. Shah pressed his view that, for
reasons of economic efficiency, social justice and national defence, certain
forms of national wealth^ — ^for example, land, mines and minerals, forests
and rivers — shoui^ be excluded from the purview of the individuaFs right
to property and their ultimate ownership reserved to the community.
Ha further urged that before any policy of payment of compensation was
adopted for State acquisition of private property it should be taken into

^Minutes, March 28, 1947, Draft Report, Annexure, Select D ccuments JL 4ini),
pp. 128, 141.

N. Rau’s notes on clauses, Select Documents ll, 4(v) (c), pp. 151-2.

®Glause 2 of the Draft Report (Corresponding to article 13 of the Constitution)
declared that any law, whether made before the commencement of the Constitution
or after, would be void to extent it was inconsistent with the fundamental
rights.,'' '

*Rajkumari Amrit Kaur’s letter to B. N. Rau, March 31, 1947. Select Documents
II, 4(v)'{b),'p. 147.

284

FRAMING OF. INDIA’S CONSTITUTION

accoBiit that in many cases the proprietor would have benefited himself by
several times the value of the property".

All these comments did not persuade the sub-committee to alter its earlier
decision on the protection to be provided to private property. B. N. Rau’s
suggestion for the insertion of a new clause was actually put to vote, but
failed to secure majority, support. In the final report- of the sub-committee
the ''due process” provision and the provision laying down safeguards in
case of compu,lsory acquisition of property were reproduced as clauses 12
and 261

The "due process” provision, in so far as it related to the protection of
property, encountered strong opposition in the Advisory Committee. Govind
Ballabh Pant said that if the clause was adopted, measures for the acquisition
of private property for public purposes — for example, legislation for the
abolition of zamindari that was under consideration in the United Provinces^ —
might be challenged in courts on the ground of inadequacy of compensation,
and pending a Supreme Court decision, which might take years, the law
would be held up. Thus, all social progress would be brought to a standstill.
Pant’s view found many supporters and finally it was decided to separate
the property provision from clause 12 by dropping the word
"property”'.

Clause 26 was also critically scrutinized with the same consideration in
view as clause 12, namely, how it would affect measures of social and
economic reform. Pant felt that the expression "public use” was ambiguous :
apart from acquisition of property for purely governmental purposes, if the
phrase were to apply to acquisition made in pursuance of some social
objective, such as the abolition of zamindari^ it would create difficulties by
requiring the State to pay adequate compensation. He had no objection to
restrictions being placed on the Government with regard to acquisition of
property for its own use; but he was emphatic that where the acquisition
was made for a social purpose, the payment of compensation should be
left entirely to the Government and the Legislature to decide. In order
that no room might be left for any doubt he suggested that the expression
"governmental purposes” might replace the words "public use”.
Rajagopalachari also felt that if the clause covered ail cases of acquisition,
the question of just compensation would inevitably be taken to the courts
in every case, with the result that Government functioning would be
paralyzed. He also raised an important point : should not the article expressly

■?,

^Siiali’s comments on the Draft Report, April ,10, 1947. Shah reiterated these
views in his note of dissent to the final report of the sub-committee. Select Documents
II, 4(v) (f) and (x), pp. 156, 195-6.

2y;inutes, April 15, 1947 and Report, Annexure. Select Documents lly 4(vii) and
(viii), pp. 166, 173-4.

^Advisory Committee Proceedings, April 21, 1947, Select Documents I!, 6(iv),
pp. 245-6. Also see under “Protection of life and liberty (articles 21-22)’’.

FXJNDAMENTAL RIGHTS

285

say that no property would be taken by the State except for public useh

Ambedkar observed that the expression “public purpose” in section 299
of the Act of 1935 referred not only to strictly governmental purposes, for
instance acquisition of land for building a police station, but to social purposes
as well. He suggested that, lest the clause should adversely affect programmes
of action of the kind mentioned by Pant, clause 26 should either be
subjected to some limiting clause or the amendment proposed by
Pant accepted.

In defence of the clause, Alladi Krishnaswami Ayyar stated that section
299 of the 1935 Act, which the clause followed closely, had not stood in
the way of Government acquiring any property. He maintained that the
addition of the word “just” before the word “compensation” did not make
any substantial difference ; for, after all, compensation carried with it the
idea of just compensation. This interpretation was contested by Panikkar
who said that under section 299(2) the quantum of compensation was not
open to question, but the clause, by using the words “just compensation”,
had made it open to question in a court of law whether or not the
compensation was just.

While Pant’s proposal for narrowing the scope of the clause to acquisition
only for “governmental purposes” was lost”, Panikkar’s suggestion to drop
the word “just” was eventually accepted by the committee and, so amended,
the provision was reproduced as clause 19 in the Advisory Committee’s
Interim Report on. Fundamental Rights’.

When the Assembly took up the consideration of the clause on May 2,
1947, of a number of amendments that had been tabled, only one which
sought to re-introduce the qualifying word “just” before the word
“compensation” was moved, but even that was later withdrawn*. However,
the general discussion revealed that a large section of the Assembly did not
regard the compensation formula embodied in the clause as satisfactory.
Most of the members who participated in the debate expressed concern that
the uniform obligation to pay compensation which the clause enjoined on the
State would make the achievement of the “promised changes”, particularly
the abolition of the zamindari system — an important and immediate objective
of many of the State Governments— almost impossible. They felt — as others
had felt in the Advisory Committee earlier — that the solution lay in
recognizing a distinction between acquisition of property for Government use
and acquisition for social ends involving the interests of large masses of

^Although the point remained unanswered in the committee, the Constitution
(Fourth Aihendment) Act, 1955, made it clear that ho property could be compulsorily
acquired or requisitioned “save for a public purpose”.

^Advisory Committee Proceedings and Minutes, April 22, 1947. Select Documents
U, 6(iv) and (v), pp. 272-6, 291. '

interim Report, Annexure. Select Documents 11, 7(i), p. 298.

‘C. A. Deb., Vol. IH, pp. 505 and 516.

286

FRAMING OF; INDIA’S CONSTITUTION

people. While ■ in the former case the State might pay not ' only
the full value of the property but something- more by/ way of
indemnification, ■ ill the latter case there might be only, nominal
compensation or , even no compensation. , Apart from the State’s capacity or
ability- to pay compensation, an important consideration in determining the
quantum of compensation, it was contended, should be the manner in which
the property -in question had been acquired and how much profit the ' owner
had made from the property. Judged by this test, many members felt that
there was no case for giving full compensation to the zamindars or the
capitalists. The clause, as it stood, would, it was feared, protect the microscopic
minority of the propertied class and deny rights of social justice to
ihe masses. It was, therefore, suggested that the clause be referred back
to the Advisory Committee for a suitable redraft. This point of view was
pressed by A. P. Jain, V. D. Tripathi, R. K. Sidhva, V. C. Kesava Rao and
Phool Singh\ On the other hand, Syamanandan Sahaya, who put forward the
case for just compensation, said that the recognition of the right to private
property was an inseparaiile feature of the principle of right over might. He
did not however wish to support the insertion of the word “just” in the
clause since in his view “compensation” by itself meant just and fair
compensatioi]. Coming to the question of zamindari abolition, he said that
it would be unfair not to give zamindars just compensation, merely on the
basis of assumptions as to how individual zamindars had originally acquired
their estates. Moreover, he wanted the Assembly to keep in view that the
compensation clause would apply not to zamindari alone but to the whole
field of movable and immovable property. To the opponents of just
compensation he posed the question, “if you want to introduce co-operative
farming or communal farming, it may be necessary to acquire even the
tenants’ lands. Would you deny them just compensation?”"

Winding up the debate, Vallabhbhai Patel observed that the discussion had
gone on a wrong track : it was not correct to assume, as most of those who
had participated in the debate did, that the object of the clause was to
provide for the acquisition of zamlndaris, as by the time the clause became
law most of the zammdaris would have been liquidated. The real meaning
of the clause, he explained, was to authorize the State to acquire land and
other forms of property for various public purposes, subject to the condition
that the State would pay compensation to the owners of the property and
hot expropriate them. In the light of this explanation, the clause was
adopted by the Assembly without any alteration".

Later, while incorporating these provisions as clause 25 in the Draft
Gonstitution of October 1947, B. N. Rau introduced certain drafting changes

*C. A. Deb.. VoL III, pp, 506-14 and 516-8.

mid., pp. 514-6.’

Hbid.. p. 518.

,F0NDAMENTAL RIGHTS

287

bringing the wording into conformity with section 299(2) of the 1935 Act\
.The Drafting Committee discussed clause 25 at its sittings, on November L
1947, and January 20 to 22, 1948. It would appear tiiat the committee
actively , considered, the effect that a constitutional guarantee of compe.iisatio'ii
might have on legislation in furtherance of socio-economic reforms. In fact,
on January 20, 1948, it actually decided to introduce a new clause ' laying
down that the 'fundamental right to property would not affect the provisions
of any .law' which the State might make for the purpose of regulating the
relation between .the landlords and the tenants in respect of agricultural -land
or 'in the discharge of,- its duty to give effect to the directive principies".
However, the decision was revised at the next meeting, the committee being
ultimately content to recommend the addition of a saving clause with a
limited scope'. Tlie entire provision on the right to property, included in the
Draft Constitution as article 24, read : '

24. (1) No person shall be deprived of his property save by authority of law.

(2) No property, movable or immovable, including any interest in, or in
any company owning, any commercial or industrial undertaking, shall be
taken possession of or acquired for public purposes under any law
authorizing the taking of such possession or such acquisition, unless the
law provides for the payment of compensation for the property taken
possession of or acquired and either fixes the amount of the compensation,
or specifies the principles on which, and the manner in which, the
compensation is to be determined.

(3) Nothing in clause (2) of this article shall affect —

(a) the provisions of any existing law, or

(b) the provisions of any law which the State may hereafter make for
the purpose of imposing or levying any tax or for the promotion of public
health or the prevention of danger ro life or property"^.

When the Draft Constitution was circulated for eliciting opinion, a number
of amendments and suggestions were received. Some amendments reflected
what might be called the socialist attitude to private property. Guptanath
Singh suggested an amendment to clause (2) whereby any property could be
taken possession of or acquired for public purposes with or without
compensation, as the Government deemed proper. Similarly, Jaya Prakash
Narayan (who was not a member of the Assembly) wanted the replacement
of the article by an alternative text, declaring that the administration and
disposal of the property; of the entire people be determined by law ; that
private property and economic enterprises, as well as their inheritance, be

^For text of section 299 see f.n. 3, p. 2S2^ supra,

®Draft article 29 (article 37 of the Constitution) laid down that it would be the
duty of the State to apply the directive principies in making laws.

^Minutes, November 1, 1947 and January 20-22, 1948. Select Documents III, 5,
■pp., 330,. 410, ■412;': ■" ■ ■ ' ' ■ -

^Select Documents Uly S, p. 526.

■288

FRAMING OF INDIANS CONSTITUTION

regulated, acquired, expropriated or socialized in accordance with law, and
that the cases in which and the extent to which the owners should be
compensated be also determined by law. The Central Ministry of Industry
and Supply, on the other hand, considered that the Constitution should
provide explicitly for the payment of “reasonable” compensation whenever
property was acquired for public purposes. The Ministry drew attention to
the Government of India Resolution of April 6, 1948, which had announced
the Government’s industrial policy and declared that in the event of
acquisition, the fundamental rights guaranteed by the Constitution would
be observed and compensation awarded on a fair and equitable basis. The
Ministry of Works, Mines and Power, supporting the same view,, observed
that unless the term “compensation” was qualified by some such word as
“equitable”, “fair”, or “just”, the article would serve no useful purpose and
could not prevent expropriatory measures or the payment of purely nominal
compensation.

Commenting on the amendments of Guptanath Singh and Jaya Prakash
Narayan, B. N. Rau pointed out that even in the U.S.S.R., the right of the
citizens to personal ownership of their incomes from work and of their
savings, dwelling houses, furniture, utensils and articles of personal use and
convenience, as well as the right of inheritance of personal property of
citizens to personal ownership of their incomes from work and of their
he said that it was not necessary to introduce the word “equitable” or some
similar word in clause (2), because “compensation”, standing by itself,
carried the idea of an equivalent: in other words the natural import of the
language of the clause as it stood would be that the compensation should
be the equivalent of the property taken possession of or acquired^

On December 9, 1948, when the article was due to be moved for
consideration by the Assembly, T. T. Krishnamachari 'suggested that it might
be taken up later, because the I>rafting Committee was considering various
amendments to the draft article so as to arrive at a compromise. The
suggestion was accepted by the Assembly and consideration of the article
was postponed.

There appear to have been sharp differences of opinion over the adjustment
to be effected between the individual’s right to property and the inherent
right of the State to take over private property in the public interest, and
the precise place that compensation — the most important element in this
adjustment — should occupy. Meanwhile, even as a great argument was
being carried on outside the Assembly, the Drafting Committee continued its
efforts to evolve a generally acceptable formula. In July 1949, the committee

^Constitution of the U.S.S.R., article 10. Constitutional Precedents (Second Series)
3rd edition.

^Comments and Suggestions on the Draft Constitution, Select Documents IV, I(i),
pp. 47-9.

FUNDAMENTAL RIGHTS

289

discussed the draft article at a meeting with the Premiers of the Provinces
and certain Ministers of the Government of India. Initiating the discussion
the Chairman of the Drafting Committee observed that the article had given
the committee lot of headache”. As a way out of the difficulties
surrounding the question of compensation, he suggested that the article itself
might be omitted and an entry included in the legislative list, borrowing word
for word the text of clause (xxxi) of section 51 of the Australian Constitution:
The acquisition of property on just terms from any State or person in
respect of which Parliament has the power to make laws.

Alladi Krishnaswami Ayyar felt that even if this suggestion was accepted,
it would not mean an end of the difficulties as courts could still enquire
v/hether the terms of the acquisition were just or not. Jawaharlal Nehru
was emphatic in his view that it was completely impractical to talk about
cash payments (he was obviously referring to programmes of large scale
acquisition, as in the abolition of zamindari). It would be impossible to pay
in cash the large amounts involved. It would be impossible to avoid payments
for such acquisition in redeemable bonds. Govind Ballabh Pant said that
after a series of discussions both within the Assembly and outside, the general
view was in favour of a clause to the effect that the payment of compensation
might be in cash or in securities and bonds or partly in cash and partly in
securities ; and that no law providing for the payment of compensation in
this manner should be called in question in any court. Alladi Krishnaswami
Ayyar said that the amendment suggested by Pant gave a carte blanche
to the Legislature and that if it was to be accepted, article 24 might well be
omitted from the list of fundamental rights.

Ambedkar suggested that a distinction should be made between the
quantum of compensation and the form in which compensation should be
paid. In his view, it was perfectly legitimate to say that the manner of paying
compensation should be left to the Legislature and no court should be
entitled to question it ; but it would be too much to lay down that no law
relating to the principles on which compensation was to be determined could
be called in question in any court. Munshi, on the other hand, was not
favourably inclined to the ousting of the jurisdiction of the courts even in
regard to the manner of compensation, for if that was done “compensation
could be spread over 100 years”. He was of the view that the best course
would be specifically to exclude zamindari property from the protection of
clause (2) and let the rest of the draft article remain as it was. Gopinath
Bardoloi, the Premier of Assam, suggested that the words “taken possession
of” in clause (2) of the article should be omitted, as otherwise development
activities would be seriously affected. At the end of the discussion the final
draft of the article was left to be settled by the Drafting Gommittee^

^Minutes of the meetings of the Drafting Committee with the Premiers, July 23,
1949. Select Documents TV, 15(iii), p. 698. Also proceedings. (Not printed.)

2 ^: ■

290

FRAMING OF INDIA’S CONSTITUTION

Ultimately, after a great deal of consultation, the Drafting Committee
brought forward a compromise redraft of article 24":

24. (1) No person shall be deprived of his property save by authority of
law.,

(2) No property, movable or immovable, including any interest in, or in
any company owning, any commercial or industrial undertaking, shall be
taken possession of or acquired for public purposes under any law
authorizing the taking of such possession or such acquisition, unless the
law provides for compensation for the property taken possession of or
acquired and either fixes the amount of the compensation or specifies
the principles on which, and the manner in which, the compensation is
to be determined.

(3) No such law as is referred to in clause (2) of this article made by the
Legislature of a State shall have effect unless such law having been
reserved for the consideration of the President has received his assent.

(4) If any Bill pending before the Legislature of a State at the
commencement of this Constitution has, after it has been passed by such
Legislature, received the assent of the President, the law so assented to
shall not be called in question in any court on the ground that it
contravenes the provisions of clause (2) of this article.

(5) Save as provided in the next succeeding clause, nothing in clause (2)
of this article shall affect —

(a) the provisions of any existing law, or

(b) the provisions of any law which the State may hereafter make for
the purpose of imposing or levying any tax or penalty or for the promotion
of public health or the prevention of danger to life or property.

(6) Any law of a State enacted, not more than one year before the
commencement of this Constitution, may within three months from such
commencement be submitted by the Governor of the State to the President
for his certification; and thereupon, if the President by public notification
so certifies, it shall not be called in question in any court on the ground
that it contravenes the provisions of clause (2) of this article or sub-section
(2) of section 299 of the Government of India Act, 1935.

The revised draft made four significant changes in the provisions
relating to the compulsory acquisition of private property as originally
proposed by the Drafting Committee. These were the omission of the words
“the payment of’ from clause (2), and the addition of three new provisions
in clauses (3), (4) and (6). The change in clause (2) was obviously intended
to meet the point made by Nehru and others at the July meeting of the
Drafting Committee with the Provincial Premiers that the Legislatures must
have a free hand in so far as the form of compensation was concerned and
that it should be open to them to direct payment of compensation partly

A. DeK Vol IX, pp. 1191-2. . :

FUNDAMENTAL RIGHTS

291

in cash and partly in. bonds. Clause (3) requiring the President’s assent for
every State law relating to compulsory acquisition of property was meant
to be a check on the State Legislatures. Clauses (4) and (6), though couched
in general terms, were, it was acknowledged on all hands, intended to
protect certain zamindari abolition measures^ from being challenged in the
courts on the ground that they did not fulfil the requirements of clause (2).

The amendment was moved in the Constituent Assembly on September
to, 1949, by Jawaharlal Nehru who observed at the outset that although
the article had given rise to much discussion and debate in the country
and had also been the subject of great argument, the questions involved
were relatively simple. It was true that there were two approaches^ — one
from the point of view of the individuars right to property and the other
from that of the community’s interest or right in that property; but the two
approaches did not necessarily conflict with each other. The amendment tried
to take into consideration fully both these rights and to avoid any possible
conflict between them. Elucidating how the amendment was going to achieve
this balance between the individual’s right and the community’s right, Nehru
made two points : (i) there was to be no expropriation without compensation;
(ii) a distinction had to be made between petty acquisitions — in regard to
which the law was clear enough — and large schemes of social reform and
social engineering which could hardly be considered from the point of view
of the individual :

Here is a piece of legislation that the community, as represented by its
chosen representatives, considers quite essential for the progress and the
safety of the State and it is a piece of legislation which affects millions of
people. Obviously you cannot leave that piece of legislation to long,
widespread and continuous litigation in the courts of law. Otherwise the
future of millions of people may be affected, otherwise the whole
structure of the State may be shaken to its foundations. . . If we have
to take the property, if the State so wills, we have to see that fair and
equitable compensation is given, because we proceed on the basis of fair
and equitable compensation. But when we consider the equity of it we
have always to remember that the equity does not apply only to the
individual, but to the community. No individual can override ultimately
the rights of the community at large. No community should injure and
invade the rights of the individual unless it be for the most urgent and
■/ important reasons.

How are we going to balance all this? You may balance it to some
extent by legal means, but ultimately the balancing authority can only

rtit was generally accepted that the intention of the framers in clause (4) was to
save the U P* ZammJan Bill and in clause (6) to save the Madras and Bihar Acts
relating to abolition from the effect of clause (2)— e.g. speeches of

J. R, Kapoor (C A. Deb,, Vol. IX, p. 1246), Renuka Ray (/IvV/., pp. 1260-1) and
Alladi Krishnaswami Ayyar .(/i?/ J., pp. 1272-3).

292

FRAMING OF INDIA’S CONSTITUTION

be the sovereign Legislature of the country which can keep before it all
the various factors— ail the public, political and other factors^ — that come
into the pictured

As regards the question of compensation^ dealt with in clause (2), he
explained that it was for the Legislature to determine its quantum or to lay
down its basic principles and the judiciary did not come into the picture
unless, there was “a gross abuse of the law” or “a fraud on the Constitution”".

Dealing with the land question, Nehru referred to the Congress pledge laid
down years ago that the zmiindm institution in India, that is, the big estate
system, must be abolished. He was definite that this pledge should be
fully implemented and that no legal subtlety was going to stand in their
way; and that even the judiciary and the Supreme Court could not stand
in judgment over the sovereign will of Parliament representing the will of
the entire community. He referred to the revolutionary aspects of the problem
and said :

When you think of the land question in India today, you are thinking of
something which Is dynamic, moving, changing and revolutionary. These
may well change the face of India either way; whether you deal with
it or do not deal with it, it is not a static thing. It is something which
is not entirely, absolutely within the control of law and Parliaments. That
is to say, if law and Parliaments do not fit themselves into the changing
picture, they cannot control the situation. . . Therefore it is in this
context of the fast-changing situation in. India that we have to view this
question and it is with this context in the wide world and in Asia that we
are concerned.

Nehru’s views on the role of courts in dealing with the question of land
reforms were definite. What the courts could do as wise people was to see
that in a moment of passion and excitement even the representatives of ihe
people did not go wrong ; and they should see to it that nothing was done
that might be against the Constitution and the good of the country. But
the judiciary would not be in a position to stand in judgment over the
sovereign will of Parliament or function as a kind of third house of
correction.

There were as many as 97 amendments to the draft article as moved by
Nehru. The controversy was largely confined to clauses (2), (4) and (6), the
most contentious issues being the question of compensation in clause (2) and
the differential treatment of zamindari property under clauses (4) and (6).
Two sharply divergent views were expressed on these matters. Some
members, who believed in the socialistic approach to private property or in
the principle of legislative supremacy, urged that the Legislature should be

A, Dek. Vol. IX, pp. 1191-3.

mid,, p, 1195.

Hbid„ pp. 1195-6.

FUNDAMENTAL RIGHTS

293

left completely free to give or to withhold compensation in all cases where
the State took .over property for public purposes and its decision in the
matter should not be challenged in courts. In contrast with this approach,
others emphasized the individual’s right to his prO'perty and advocated that
full compensation should be paid in all cases of compulsory acquisition, even
in the case of zcmindaris, and that courts, not the Legislature, should be
the final arbiters of the adequacy of compensation. Between these two rather
extreme views, there was^ a third view to the effect that while the requirements
of full compensation and a judicial review of the adequacy of compensation
should not apply in the case of zctmindarisy they should hold good in aU
other cases.

Thus, Damodar Swarup Seth, who moved an amendment for the
replacement of the article, exactly similar to the one suggested by Jaya
Prakash Narayan, demanded the rejection of the theory that man had a
natural right in property. Describing the article as proposed by Nehru as
a "'Magna Carta in the hands of the capitalists of India”, he said that it
was impossible for the State to pay owners of property in all cases and at
market value and, in fact, even partial compensation would have no
Justification when a general transformation of the economic structure on
socialist lines took place. The State, therefore, must be left free to determine
compensation according to the social will and prevailing social conditions.
Another advocate of socialization, K. T. Shah, also opposed the proposition
that there would be no expropriation without compensation. He suggested
several amendments. The main compensation clause, according to him,
authorized the Legislature not only to lay down the principles for the
determination of compensation but also to decide whether in any particular
case compensation should in fact be paid. There was also a long proviso
listing property for the acquisition of which no compensation would be
payable. This list included public utilities and social services wliich had
remained under private control for a period of twenty years; agricultural
land w^ich had remained undeveloped or uncultivated for ten years ; urban
land remaining unbuilt for a period of fifteen years ; agricultural land of
every description which had remained in private possession for over twenty-
five years ; mines, forests, etc., which had remained in private possession for
twenty years ; and stocks and shares, etc., which had remained under the
control and management of the same joint stock company for thirty yearsk

Shibban Lai Saxena, H. V. Kamath and Mrs. Renuka Ray urged that
the power to determine compensation should be exclusively vested in the
Legislature whose decision should not be open to challenge in any court ;
and with this object in view they suggested certain amendments to clause {2).
According to them, under clause (2) as it stood the quantum of compensation
would be justiciable and the Supreme Court the ultimate authority to

A. Deb., VoL IX, pp. 1199-1201 and 1215-21.

294

FRAMING, OF INDIA’S CONSTITUTION

determine the adequacy of compensation. That this was so, both Saksena
and Mrs. Ray maintained, was evident from the exemption from the
requiremeiils of clause (2) made in favour of the zmmndari abolition
legislation of the United Provinces, Bihar and Madras, under clauses (4)
and (6). To make sure that the Legislature would have the supreme voice
in the determination of compensation, Mrs. Ray’s amendment specifically
laid down that no law providing for the acquisition of property would be
called in question in any court either on the ground that the compensation
provided for was inadequate or that the principle and the manner of
compensation specified were fraudulent or inequitable'.

On the other hand, there were a number of amendments, to clause (2)
which sought to secure greater protection to the individual mainly by giving
courts the final say in the determination of compensation, so that any person
whose property was taken over by the State would in every case be assured
of getting adequate compensation. Thakurdas Bhargava felt that the clause
as it stood was not only non-justiciable but also went against the rights of
property as recognized under draft article 13". He therefore moved an
amendment providing that proper or fair compensation would be paid, with
a suitable reservation about zwiindari legislation. Bhargava argued that
only by an amendment of this kind could the right to compensation be made
justiciable, as was the intention of the framers of the Constitution. Similar
amendments were also moved by Mahboob Ali Baig, B. Das and Ahmed
Ibrahim. The amendment moved by Ibrahim sought to provide that
compensation should be fair and equitable based on the market value;
unless there was certainty about the value of compensation, there would be
no* incentive for people to invest money in land or in commercial
undertakings or industriesl

Among others who supported the principle of just or equitable compensation
were Naziruddin Ahmed and Jaspat Roy Kapoor. Nazir uddin Ahmed said
that although the word "‘compensation” itself meant fair and equitable
compensation, it appeared necessary in view of “certain pronouncements” in
the Assembly to lay down in clause (2) that the compensation provided by
law must be fair and equitable. There was no need to be afraid of
justiciability, Kapoor said, for “equitable” was a flexible term and judges
could be relied upon to determine what was “equitable in accordance with
the prevailing political theories and accepted economic principles of the
times”'.

There was not much discussion on clause (3), Kamatli suggested the
deletion of the clause as it might lead to '‘serious conflicts” between the

A. J}eb., Vol. IX, pp. 1201-4, 1211-3 and 1260-3.

^Article 19(l)(f) of the Constitution— ‘right to acquire, hold and dispose of
property”.." "

.4. Vol IX, pp. 1222-4, 1226-8, 1248-9 and 1257-9.
pp. 1233-5 and 1243-5.

FUNDAMENTAL RIGHTS

295

Stale Govemiiieiits and the Union Government. Two other amendiiients,,
one moved by Thakurdas Bliargava and the other by Mahboob Ali Baig,
sought to make sure that there was no loophole in the clause which might
allow State laws providing for acquisition of property to become operative
without receiving the President’s assenth
Clauses (4) and (6), which sought to protect certain zamindari legislation
from being challenged in the courts on the ground of contravention of clause
(2), were bracketed together by most of the participants in the debate. The
main criticism against them was that they were discriminatory as they
discriminated not only between zamindari property and industrial property
but also between zamindari property already acquired and property to be
acquired later. While the Provinces which were first in the run had their
laws protected by the two clauses and could abolish zamindari without
paying compensation others had to abide by the principle of compensation.

It was interesting to find that the view that the clauses were discriminatory
was widely shared by members like Shibbaiiial Saxena, Thakurdas Bhargava^
Naziruddin Ahmed and Syamanandan Sahaya whose outlook on property
had nothing else in commoiik Syamanandan Sahaya asserted that the
inclusion of these clauses militated against the fundamental rights of
acquiring, holding and disposing of property% and the guarantee of equal
protection of lawk “Is it”, he avsked, ‘‘equal protection of law to deny
to one class of zamindars the right of justiciability with regard to the right
of compensation for their acquired property and to give other zammdars —
of other Provinces — the same right?” He pleaded for the deletion of
clauses (4) and (6)k

Finally, there was an amendment to replace the words “one year” in
clause (6) by the words “eighteen months”. The amendment, its mover Kala
Venkata Rao said, was necessary for the simple reason that there might be
some difficulty for the Madras legislation pertaining to zamiftdaris, which
had received assent in March 1949, if by some chance the Constitution did
not come into force on January 26, 1950k
Clause (5) did not evoke much discussion. An imiTortant amendment to
ihe clause was moved by Jaspat Roy Kapoor, which sought to exempt
legislation relating to evacuee property from the operation of clause (2).
Explaining the necessity for the amendment, Kapoor said that refugees who
had come to India from West Pakistan had left behind property worth about
Rs. 1,500 crores (15000 million), whereas the value of evacuee property
in India was only about Rs. 500 crores (5000 million). The delicate

T. VoL IX, pp. 1211-3, 1226-8, 1257-9.

Article 19(1 )(f) of the Constitution.

^Article 14 of the Constitution,

5(7, VoL IX, pp. 11^^^^

■ 1239,' :'■■■ , ,

296

FRAMING OF INDIANS CONSTITUTION

negotiations going on between India and Pakistan had not till then led to
a settlement. In the event of no agreement being reached India would have
to appropriate evacuee property ; “not only then we shall be losing all the
property of the refugees to the extent of Rs. 1,500 crores but we shall be
compelled under clause (2) to pay compensation to evacuees aIso”\

By two separate amendments to clause (5), K. M. Munshi proposed a few
verbal changes. During the general discussion, Alladi Krishnaswami Ayyar
and Govind Ballabh Pant succinctly dealt with the criticisms of the article.
The former said that although he had not always seen eye to eye with Nehru
in regard to some of the points covered by the article, he now accepted his
view without any reservation. The words ‘‘the payment of” occurring in
clause (2), as it originally stood in the Draft Constitution, had been purposely
omitted to make it clear that compensation need not necessarily be paid
'‘in the current coin of the realm and immediately” and might legitimately
be paid in the form of bonds or in instalments. As regards the import of
the word “compensation” in clause (2). which had given rise to so much
controversy, it was obvious from the omission of the qualifying word “just”
that the language employed in the article was not in pmi materia with the
language employed in corresponding provisions in other constitutions,
especially in the U. S, and Australian Constitutions, and the construction of
the word “compensation” would vary from the construction put by the
American and Australian courts on the expression “just compensation”.
Apart from that, the principles of compensation by their very nature could
not be the same in every species of acquisition. In formulating the principles
the Legislature had necessarily to have regard to the nature of the property,
the history and course of its enjoyment, the class of people affected by the
legislation and so on. Further, he emphasized that under item 35" of the
Concurrent List, already passed by the Assembly, the Legislature had been
clothed with plenary power to formulate the principles and the manner of
compensation. Referring to an accepted principle of constitutional law, he
said :

The court is not to regard itself as a super legislature and sit in judgment
over the act of the legislature as a court of appeal or a review. The
iegisiature may act wisely or unwisely. The principles formulated by the
legislature may commend themselves to a court or they may not. The
province of the court is normally to administer the law as enacted by
the legislature within the limits of its power. Of course, if the legislation
is a colourable device, a contrivance to outstep the limits of the
legislative power or, to use the language of private law, is a fraudulent
exercise of the power, the court may pronounce the legislation to be
invalid or ultra vires. The court will have to proceed on the footing that

A. Deb., Vol. IX, pp. 1242 and 1247-8.

^Corresponds in the Constitution to Entry 42, Concurrent List, Seventh Schedule:
Acquisition and requisitioning of property.

FUNDAMENTAL FIGHTS

297

the legislation is intra vires. A constitutional statute cannot be considered as
if it were a municipal enactment and the legislature is entitled to . enact
any legislation in the plenitude of the power confided to it.

Alladi Krishnaswami Ayyar argued that in the light of this interpretation,
clauses (4) and (6) were perhaps redundant. But it was better to retain
them as a matter of abundant caution and to give a quietus to iitigatioii.
Drawing attention to the requirement of the President’s assent to State
legislation falling under clauses (4) and (6), the assent in the context of these
clauses, he considered,, was not a formal matter and the President was in
fact expected to see before assenting that the Bill conformed to the main
scheme of the articled

Pant made a strong plea in defence of clause (4) and the United Provinces
Zamindari Abolition and Land Reforms Bill which that clause was designed
to save from being challenged on the ground of contravention of clause (2).
Although the U. P. Bill did in fact provide for equitable compensation to
the zamindars, it became necessary to have clause (4) because of what he
called the lust for litigation of the zcimindars and taluqdars. He added,
however, that ‘"equity” or “equitable compensation” could not be defined in
terms of any yardstick and what was equitable could be determined only
in the light of all the relevant factors. Thus, in the case of a large measure
of social reform it was the welfare of the entire State and the entire
community that had to be borne in mindl

Further, in an obvious reference to clause (2) and criticisms directed against
that clause, Pant saw absolutely no reason why the article should give the
investors any cause for misgivings when they had no such apprehensions with
regard to section 299 of the Government of India Act of 1935. The provisions
of the article went much further than section 299 in protecting the interests
of property-holders ; section 299 dealt only with compulsory acquisition of
property, while the protection given by the article extended not only to
“compulsory acquisition” but also to “taking into possession” of property
for public purposes.

On the issue as to whether or to what extent compensation under clause (2)
was a justiciable matter. Pant agreed with Alladi Krishnaswami Ayyar’s
view that the principles of compensation laid down by the Legislature would
be invulnerable in any court unless they amounted to a fraud on the
Constitution. Replying to the socialists’ objection to the article. Pant pointed
out that they had also agreed that there should be no acquisition without
compensation, and that the quantum of compensation would be decided by
the Legislature^ with due regard to the purpose for which the property was
acquired and the circumstances in which it was acquired.

^C. A. Deb., Vol. IX, pp. 1272-4.
Hbid., pp. 1287-9.
nbid..pp. 1289-90.

298

FRAMING OF INDIA’S CONSTITUTION

Mmshi, wlio^ ^ the debate, commended the article moved by

Nehru as ‘‘a Just compromise”. With regard to clause (2), he reiterated
the view that the Legislature had full powers to fix the form and the manner
of compensation. He felt that the question of justiciability of the clause had
been unnecessarily brought into the controversy. It was necessary that the
right of the Legislature in matters relating to acquisition of property should be
properly defined. It was equally necessary that judicial review should be
permitted where there was a wrongful deprivation of the fundamental right
to own property guaranteed by the Constitution, either, because the Legislature
had seized property by acting outside its powers, or had failed to
fix the amount of compensation or the principles for determining
compensation, or the principles laid down were illusory and there was
expropriation in the guise of acquisition, in other words, a fraud on the
Constitution'.

As regards clauses (4) and (6), Munshi denied that the inclusion of these
clauses amounted to going back on the Constituent Assembly’s earlier
decisions expressed in the adoption of clause 19 of the Advisory Committee’s
interim report, that no property would be taken possession of or acquired
by the State without the payment of compensation. When that clause was
adopted it was expected that zamindari would be liquidated long before the
conclusion of the Assembly’s deliberations — in support of his point he
recalled Vallabhbhai Patel’s observations during the debate on clause 19 —
and that only other properties would be acquired on the lines of clause (2).
Since the expectation had not materialized, it was necessary to modify the
original proposition^

Finally, Munshi said that besides the two amendments of a verbal nature
which he had proposed to clause (5), he was willing to accept three other
amendments to the article. One was Kapoor’s amendment whereby laws
relating to evacuee property were sought to be exempted from the
requirements of clause (2) and the other Kala Venkata Rao’s amendment for
the replacement of the words “one year” in clause (6) by the words “eighteen
months”.

The long and animated debate on the article concluded on September 12,
1949. The amendments accepted by Munshi were adopted by the Assembly,
all others being negatived. With these modifications, draft article 24, as
moved by Nehru, was adopted^

Subsequently, at the revision stage, the Drafting Committee renumbered
it as article 31 and also recast clauses (4), (5) and (6). No change of
substance was made except in clause (6) which was expanded to cover certain
laws relating to evacuee property passed by the Central Legislature within

^C. A. Dei??., Vol. IX, pp. 1297-1302.

Hbid,

Hbid.rpp. 1302 - 11 . ■■

FUNDAMENTAL EIGHTS

299

eighteen months before the commencement of the Constitution h With these
diaiiges, arlicie 31 assumed the form in which it finally appeared in the
Constitution adopted by the Assembly on November. 26, 1949 :

31. (1) No . person shall be ' deprived of his property save, by authority
of law.

(2) No property, movable or immovable, including any interest in, or in
any company owning, any commercial or industrial undertaking, shall be
taken possession of or acquired for public purposes under any law
authorizing the taking of such possession or such acquisition, unless the
law provides for compensation for the property taken possession of or
acquired and either fixes the amount of the compensation, or specifies the
principles on which, and the manner in which, the compensatioii is to be
determined and given.

(3) No such law as is referred to in clause (2) made by the Legislature of
a State shall have effect unless such law, having been reserved for the
consideration of the President, has received his assent.

(4) If any Bill pending at the commencement of this Constitution in the
Legislature of a State has, after it has been passed by such Legislature,
been reserved for the consideration of the President and has received
his assent, then, notwithstanding anything in this Constitution, the law
so assented to shall not be called in question in any court on the ground
that it contravenes the provisions of clause (2).

(5) Nothing in clause (2) shall affect —

(a) the provisions of any existing law other than a law to which the
provisions of clause (6) apply, or

(b) the provisions of any law which the State may hereafter make —

(i) for the purpose of imposing or levying any tax or penalty, or

(ii) for the promotion of public health or the prevention of danger to
life or property, or

(iii) in pursuance of any agreement entered into between the Government
of the Dominion of India or the Government of India and the
Government of any other country, or otherwise, with respect to property
declared by law to be evacuee property.

(6) Any law of the State enacted not more than eighteen months before
the commencement of this Constitution may within three months from
such commencement be submitted to the President for his certification ;
and thereupon, if the President by public notification so certifies, it shall
not be called in question in any court on the ground that it contravenes
the provisions of clause (2) of this article or has contravened the
provisions of sub-section (2) of section 299 of the Government of India

■ 'Act, '1.935..,.'

^Draft Constitution as revised by the Drafting Committee, November 3, 1949,
Select Documents 159-6^,

300

FRAMING OF INDIANS CONSTITUTION

NOTE ON AMENDMENTS

The Constitution (Fourth Amendment) Act, 1955, recast the wording of
clause (2) of article 31 and added a new clause (2- A). Clause (2) as amended
read : ■

(2) No property shall be compulsorily acquired or requisitioned save for
a public purpose and save by authority of a law which provides for
compensation for the property so acquired or requisitioned and either fixes
the amount of the compensation or specifies the principles on wliich, and
the manner in which, the compensation is to be determined and given;
and no such law shall be called in question in any court on the ground
that the compensation provided by that law is not adequate.

The principal changes made were :

(i) provision was made for acquisition and requisitioning ;

(ii) it was expressly stated that no such law would be called in question in
any court on the ground that the compensation provided was inadequate.

A new clause (2-A) laid down that the obligation to pay compensation
under clause (2) would not arise unless either the ownership or the right to
possession of the individual was transferred to the State or to a
corporation owned or controlled by the State.

2. A new article 31 -A was inserted by section 4 of the Constitution (First
Amendment) Act, 1951. It excepted from the operation of any of the
safeguards conferred by the fundamental rights laws providing for the
acquidtioii of any “estate” or any rights therein, but a State law making
such provision was required to be submitted to the President for his assent.
The Act also defined the term “estate” and rights in relation to an estate.

3. Article 31 -A was substituted by a more elaborate article by the
Constitution (Fourth Amendment) Act, 1955. The new article had the effect
of taking out of the protection of the fundamental rights all legislation
providing for—

(i) the acquisition by the State of any estate or of any rights therein,
or the extinguishment or modification of any such rights i,e., legislation
aimed at the abolition of jagirdaris, zamindaris and other feudal
tenures ;

(ii) the taking over of the management of any property by the State
for a limited period;

(iii) the amalgamation of two or more corporations ;

(iv) the extinguishment or modification of rights of managing agents,
secretaries and treasurers, managing directors, directors, or managers
of corporations, or of voting rights of shareholders;

(v) the extinguishment or modification of rights accruing under any
agreement, lease or licence relating to minerals.

The definition of “estate” was amended by the inclusion of certain rights
enjoyed by landlords in Madras and Travancore-Cochin ; and the definition

FUNDAMENTAL RIGHTS

301

of ‘^'rights” in relation to an estate was enlarged so as to include not only tlie
interests of '"intermediaries”, but also of ''myats and imder-raiyats’"; it
already included the rights of a proprietor, sub-proprietor, under-proprietor,
tenure-holder, or other intermediary.

4. The Constitution (Seventeenth Amendment) Act, 1964„ inserted a
further proviso laying down that where any law made provision for the
acquisition of an estate, and where any land comprised in such estate was
held by anyone under personal cultivation, the law had to prescribe a ceiling
limit for such personal cultivation; and within this ceiling limit acquisition
could be effected only by the payment of compensation not less in amount
than the market value. It also amended the definition of the term "‘estate”,
to include land under ryotwari settlement as well as land held or let for
purposes of agriculture or ancillary purposes.

5. The Constitution (First Amendment) Act, 1951, added a new article 31-B
and a schedule (the Ninth Schedule) listing thirteen State Acts and providing
that these Acts would not be void merely on the ground that they infringed
any of the fundamental rights. The Constitution (Fourth Amendment)
Act, 1955, added seven more Acts to this list ; and the Constitution
(Seventeenth Amendment) Act, 1964, added no less than forty -four Acts to
this category.

RIGHT TO CONSTITUTIONAL REMEDIES
Articles 32-35

Remedies for enforcement of fundamental rights
{Article 32)

The idea of providing in the Constitution effective remedies for the
enforcement of the fundamental rights was from the very beginning present
in the minds of its framers. When the Sub-Committee on Fundamental
Rights assembled for the first time on February 27, 1947, Alladi
Krishnaswami Ayyar pointed out that the citizens’ rights to be embodied
in the Constitution should consist of guarantees enforceable in courts of law
and that it was no use laying down precepts which remained unenforceable
or ineffective. As to the precise means by which these rights were to be
guaranteed, Munshi was emphatically of the view that the Constitution should
provide for writs to be issued by the courts. Ambedkar supported this
suggestion".

In his note on fundamental rights Munshi pointed out that fundamental
rights in the United States and civil liberties in Britain had been preserved
by reason of two factors : (a) an independent judiciary, and (b) the

prerogative writs of habeas corpus, mandamus, prohibition, cer/fururi and

^Minutes, February 27, 1947, Select Documents 4(iii), pp. 115-6,

302

FRAMING OF INDIANS CONSTITaTION

quo warranto. In India, Munshi added, only the High Courts of Madras,
Bombay and Calcutta were vested -with the power to issue writs and • this
power extended only to the respective city areas where, these courts exercised
original jurisdiction, with the result that except in these three cities the
machinery for enforcing civil rights was the tardy remedy of a suit and
the public conscience was not therefore keenly alive to the assertion of
rights against the executive. Within the area under their jurisdiction these
High Courts, inheriting the independence of the King’s Bench in the United
Kingdom, had built up a strong tradition of prerogative writs. If writs
were not provided for in the new Constitution, people would have to subject
themselves to the loss of valuable rights before the constitutionality of an
act of a Government was tested in a suit which might take years to be
finally decided. He added:

The object of the fundamental law will be frustrated if people have to
serve sentences, pay fines or deny themselves the privileges given by the
Constitution for a long time under an invalid law. . . Without prompt
machinery of enforcement, the Union and State Governments might
conceivably lapse into a programme inimical to freedom. The existence
of a legal right in the Constitution must necessarily imply a right in the
individuai to intervene in order to make the legal right effective^
Accordingly, in Munshi’s draft provisions on fundamental rights, the right
to constitutional remedies v/as incorporated as a fundamental right ; courts
within the Union could be moved for the issue of four writs of right, namely,

(a) the writ of person (habeas corpus) to secure the release of any one from
imlawfiil or unjustifiable deprivation of the right of personal liberty,

(b) the writ of enforcement (mandamus) to secure the performance of any
specific act by a unit, an officer or a corporation in the discharge of a
definite public duty, obligation or requirement with which it was specifically
charged by the Constitution or by any law, (c) the writ of prohibition,
prohibiting any court (other than the Supreme Court) or tribunal from
continuing proceedings in contravention of the Constitution or in excess of
jurisdiction vested in it by law, and (d) the writ of direction {certiorari)
for directing a judge (other than a judge of the Supreme Court) or a person
or body vested with judicial functions to transmit the record of proceedings
pending before him or it and involving a question of a right or a duty for
the purpose of quashing the proceedings or referring them to the appropriate
tribunal These writs, however, could not be invoked during the existence
of a state of war, armed rebellion or a grave emergencyl

Munshi’s views were generally shared by the other members, of the
sub-committee. The corresponding provision in Ambedkar’s draft only
differed from Munshi’s proposals in that it vested the authority to issue

AMunshi’s note on Fundamental Rights, Select Documents 11, 4(ii)(b), pp. 71-3.
nbicL articles XIII and XIV (3), pp. 79-80.

FUNDAMENTAL RIGHTS

303

prerogative writs exclusively in the Supreme Court and included an
additional writ— the writ of quo warranto.

Ambedkar was also strongly in favour of the power of 'prerogative writs
as a speedy and effective means of guaranteeing fundamental rights.
Reinforcing Munshi’s arguments, Ambedkar said : ■ ■

The High Courts in India possess these powers under the Government of
India Act under their Letters Patent. These powers are, however, subject to
three limitations. In the first place the powers given by the Letters Patent
are available only to the High Courts in the Presidency towns (Madras,
Bombay and Calcutta) and not to all. Secondly, these powers are subject
to laws made by the Indian Legislature. Thirdly, the powers given by
the Government of India Act, 1935, are restricted and may prove
insufficient for the protection of the aggrieved person. The clause
achieves two objectives (I) to give the fullest power to the judiciary to issue
what under English law are called prerogative writs and (2) to prevent the
Legislature from curtailing these powers in any manner whatsoever\

At the meeting of the Fundamental Rights Sub-Committee on March 29,
1947, Alladi Krishnaswami Ayyar made a somewhat different proposal : that
habeas corpus should be treated differently from other writs. If a complaint
was made that any person was unlaw'fully detained, every High Court and
the Supreme Court, and every judge of these courts should forthwith enquire
into it. They could order the detained person to be produced, and could
also order his release unless satisfied that he was being detained in accordance
with law. In addition, Alladi Krishnaswami Ayyar suggested that such other
remedies and writs would be available to anyone whose fundamental rights
were infringed as might be provided in the Constitution and the laws of
the Union ; and the Supreme Court and all other courts were to have such
jurisdiction as the Constitution and the law might confer on them. The
majority opinion in the sub-committee was, however, that ail the writs
should be specified ; and the clause on the right was drafted accordingly as
clause 32 :

32(1) The right to move the Supreme Court for the enforcement of any
of the rights guaranteed by this chapter is also hereby guaranteed.

(2) For the purpose of enforcing any such rights the Supreme Court shall
have power to issue directions in the nature of the writs of habeas corpmi
mandamus, proMbition md certiorari.

(3) The privilege of the writ of habeas corpus shall not be suspended
unless when, in the cases of rebellion or invasion or other grave
emergency, the public safety may require

Gommenting on the draft Alladi Krishnaswami Ayyar wanted it to be

^Ambedkar’s draft, article Il(iiXi) and explanatory notes thereon. Select
Documents ll, AiXi){dX pp. 91 S.

March 29, 1947, and Draft Report, Select Documents ll, 4(iii) and (iv),
pp. 131-2,,T4!. ■ . . .* ■

304

FRAMING OF INDIA’S CONSTITUTION

made clear that the power to be conferred on the Supreme Court would not
prevent similar powers being vested in other courts also'. Elaborating this
suggestion at the meeting of the sub-committee on April 15, 1947, he
emphasized the necessity to have a uniform interpretation of the fundamental
rights and therefore to give to the Supreme Court an overall jurisdiction
in the matter of their interpretation. On practical grounds he thought that
there should also be lower courts with the necessary jurisdiction to which
aggrieved parties could go’".

The sub-committee adopted the clause with two modifications : the writ
of quo warranto was added to sub-clause (2) and the sub-clause v/as amended
to provide for the suspension in an emergency of all the writs and not habeas
corpus alonel

In a minute of dissent appended to the report, Alladi Krishnaswami Ayyar
observed that while he was wholeheartedly in support of the principle that
any fundamental right guaranteed under the Constitution should have the
appropriate sanction and as speedy a remedy as possible, he was against
reproducing the complicated writ procedure and was in favour of substituting
a simple remedy by application, which would be easily understood by the
average citizen. He pointed out that even in England the writ procedure
had been abolished in 1938.

Apart from the question whether the proper procedure should be by writ
or application, Alladi Krishnaswami Ayyar thought that, having regard to
the variety of rights embodied in the list of fundamental rights, an omnibus
clause sucii as the one proposed would be inappropriate, and the result might
well be that the Supreme Court would be flooded with applications of all
sorts. He therefore suggested that original jurisdiction should be conferred
on the Supreme Court only in certain matters and that over the rest of the
field its jurisdiction should be revisionary or appellate. He recommended
that the proposal made by him at the sub-committee meeting should be
adopted, the Supreme Court being given original jurisdiction to entertain
applications only in the case of habeas corpus. In any case it would be
essential to avoid a possible construction of the provision that the Supreme
Court alone would be the exclusive authority for the enforcement of
fundamental rights. In a vast country like India the guardian of the
liberties of the subject in the first instance must be the provincial or local
courts, though it might be necessary to invest an appellate or revisional
jurisdiction in the Supreme Court\

The clause came up before the Advisory Committee on April 22„ 1947.
Discussion centred mainly round the question of the jurisdiction of the

^Notes and Comments on the Draft Report, Select Documents II, 4(v)(g), p. 160.

^Minutes, April 15, 1947, Select Documents 11, 4(vii), p. 166.

^Report, Select Documents II, 4(viii), p. 175.

^Minute of dissent to report of sub-committee. Select Documents II, 4(ix),

pp. 181-2. : ’ '

FUNDAMENTAL RIGHTS

305

Supreme Court and of the other courts in the country to enforce fundamental
rights. There was really no difference of opinion on principle ; it was
accepted that the Supreme Court would have full jurisdiction, but that other
courts would exercise jurisdiction as well subject to the appellate and

revisionary powers of the Supreme Court. Alladi Krislinaswami Ayyar
reiterated Ms view that it would not be practicable for the individual to
approach the Supreme Court for every case of infringement of fundamental
rights; and suggested therefore that the Constitution should invest the
Supreme Court only with powers regarding habeas corpus which, aSecting
the liberty of the individual, was different from the other writs. These
other writs, he suggested, could be regulated by Union law. But this
proposal did not meet with any support. Ambedkar said that the jurisdiction
of the Supreme Court to issue all types of writs should be expressly derived
from the Constitution so that no Legislature under any circumstances except
in an emergency would have the power to take away the right. Eventually
the Chairman of the Advisory Committee requested Munshi, Ambedkar and
Alladi Krishnaswami Ayyar to revise the clause suitably" in the light of these
views ; in the redraft suggested by them sub-clause (2) was modified to read :
(2) Without prejudice to the powers that may be vested in this behalf in
other courts, the Supreme Court shall have power to issue directions in the
nature of the writs of habeas corpus, mandamus, prohibition, qua warranto
and certiorari appropriate to the right guaranteed in this part of the
Constitution.

With these amendments it appeared as clause 22 in the Advisory
Committee’s report".

Wlien the clause was taken up for consideration in the Constituent Assembly
on May 2, 1947, K. Santhanam moved an amendment seeking to make it
clear that in sub-clause (3) the emergency situation when the privilege of
writs could be suspended must be defined as one ‘'declared to be such by
the Government of the Union or of the unit concerned”. He also pointed
out that the clause “the right to move the Supreme Court is hereby
guaranteed” did not make it clear whether the Supreme Court was to have
exclusive original jurisdiction in such matters or whether its powers were
to be appellate and that the clause was vague on the point whether the
authority which would vest jurisdiction in other courts would be Parliament
or the unit Legislatures. Santhanam’s own view was that all original
jurisdiction should be vested in the High Courts so that' they might become
the lynchpin for the enforcement of fundamental rights. He also said that
the authority conferring powers on other courts should be Parliament and'
not the Legislatures of the units. , ■

^Proceedings of the Advisory Committee, April 22, 1947, Select Documents 11,
6(iv), pp. 277, 284-5.

^Select Documents II, 7(i), p. 299,

' 21 ^

'306

FRAMING OF INDIA’S CONSTITUTION

Vallablibhai Patel accepted Santhanam’s amendment. Replying to the
points raised by him, Patel said that the danse was intended to provide
for a judicial remedy and had nothing to do with the exclusion or
appropriation of the jurisdiction of High Courts or any other courts ; all
these matters would be considered at the time of deciding the judicial set-up
in the Constitution. On this assurance, the clause as modified by
Santhanam’s amendment was adopted*.

The ad hoc committee on the Supreme Court which inter alia examined
the question of writ jurisdiction, expressed itself against vesting it exclusively
in the Supreme Court. Tlie citizen, said the committee, would practically be
denied fundamental rights if whenever they were violated he was compelled
to go to the Supreme Court as the only court from which he could obtain
redress. The committee recommended that, where there was no other
court with the necessary jurisdiction, the Supreme Court should have
original jurisdiction. Where there was some other court the Supreme
Court should have appellate jurisdiction including the power of
revision^

The Constitutional Adviser, in incorporating in his draft the decision as
adopted by the Constituent Assembly as clause 28„ dropped the substance
of sub-clause (2) which vested in the Supreme Court power to issue writs.
Explaining the omission, he said that it was unnecessary to give the Supreme
Court a separate power to issue habeas corpus directions as the power already
given to High Courts under section 491 of the Code of Criminal Procedure*
and the right of appeal to the Supreme Court would be adequate for all
practical purposes. In regard to thfe writ of mandamus, powers equivalent
to mandamus were already exercisable by the High Courts of Calcutta,
Madras and Bombay under section 45 of the Specific Relief Acf . These
powers could be extended to other High Courts, leaving the final decision
with the Supreme Court in appeal. As for the other writs, B. N. Rau thought
that they were unnecessary ; and he gave an illustration where the existence
of such a right might hamper public health activities, the demolition of
insanitary buildings^

A. Deb., VoL HI, pp. 520-2.

*Unloii Constitution Committee Report, Appendix X, Select Documents II, 18(1),
p. 588. ' '

®Un(!er section 491 of the Code of Criminal Procedure any High Court may,
whenever it thinks fit, direct among other things that a person iegaiiy or improperly
detained in public or private custody within the limits of the court’s appellate
criminal jurisdiction be set at liberty.

"^Section 45 of the Specific Relief Act empowers the High Courts of Calcutta,
Madras and Bombay to make orders requiring any specific act to be done or
forborne within the limits of their ordinary original civil jurisdiction by any person
holding a public ofiice or by any corporation or any inferior court of justice.

®Draft Constitution, B. N. Rau’s notes on certain clauses, .yee 'note on clause 28.^
Select Documents III, l(i) and (ii), pp. 12, 200-1.

FUNDAMBNTAL RIGHTS

307

The Drafting Committee did not accept the change proposed , by ' the
Constitutional Adviser and restored sub-clause (2) to' its original form. The
committee in its draft made it clear that the Supreme Court was not to have
an exclusive power to issue writs or directions for the enforcement of
fundamental rights and that Parliament could by law empower any other
court to exercise similar powers within the local limits of its jurisdiction.
The clause as settled by the committee was incorporated in the Draft
Constitution as article 25 :

25. (i) The right to move the Supreme Court by appropriate proceedings
for the enforcement of the rights conferred by this Part is guaranteed.

(2) The Supreme Court shall have power to issue directions or orders in
the nature of the writs of habeas corpus, mandamus, prohibition, quo
warranto and certiorari, whichever may be appropriate, for the enforcement
of any of the rights conferred by this Part.

(3) Parliament may by law empower any other court to exercise within
the local limits of its jurisdiction all or any of the powers exercisable by
the Supreme Court under clause (2) of this article.

(4) The rights guaranteed by this article shall not be suspended except as
otherwise provided for by this Constitution.

Clause (4) was linked with article 280 which gave power to the President
to declare, in an emergency when the security of India was threatened by
war or domestic violence, that the right guaranteed by this article would
remain suspended.

The Drafting Committee also included an article (202) expressly declaring
that every High Court would also have power to issue these writs for the
enforcement of fundamental rightsh

When the Draft Constitution was circulated for opinion, several suggestions
for changes in article 25 were received. V. T. Krishnamachari and other
representatives of certain Indian States suggested that in an Indian State
provision should be made for the highest judicial tribunal in that State to
be moved in the first instance for the enforcement of fundamental rights ; the
Supreme Court’s, jurisdiction should only be invoked by way of revision or
appear. Pattabhi Sitaramayya suggested the insertion at the beginning of
clause (3) of the words “without prejudice to the powers of the Supreme
Court under clause (2) of this article”. The object of the amendment
was to make it clear beyond all doubt that the Supreme Court’s power to
issue writs for the enforcement of fundamental rights would not be affected
by any law that Parliament might make for conferring similar powers on
any other court. R. K. Sidhva wanted the words “other court” in clause (3)

^Select Documents III, 6, pp. 526, 593, 625. •

-Comments attd Suggestions on the Draft Constitution (by V. T. Krishnamacliari,
B. H. ZaidI, Raja Sarda^ of Khetri and Sardar Jaidev Singh),

documents W, f, ■2^3,

308

FRAMING OF INDIANS CONSTITUTION

to be 'ssubstitut^ by the words “High Court’’, while another member,
Tajamul Husain, suggested the deletion of clause (4).

Cbmmenting on the amendments and suggestions, B, N. Ran said that
there was no objection to Pattabhi Sitaramayya’s amendment. Sidhva’s
amendment was umiecessary as under draft article 202" the High Courts had
already been invested with the powers to issue directions in the nature of
writs. Moreover, the object of clause (3) was to enable Parliament to
empower any other court to exercise all or any of these powers; for the
convenience of parties. Regarding Tajamul Husain’s amendment, B. N. Ran
observed that clause (4) of the article had to be read along with draft article
280"" which empowered the President to suspend the right to constitutional
remedies during the operation of a proclamation of emergency. He added
that such curtailment of fundamental rights was necessary to meet
extraordinary situations when the very existence of the State might be at
stake and pointed out that similar provisions existed in the Irish and U.S.
Constitutions®.

After considering the various amendments and suggestions the Drafting
Committee decided to accept only one amendment, that moved by Pattabhi
Sitaramayya. When draft article 25 came up for consideration in the
Constituent Assembly on December 9, 1948, this amendment was moved
by Am,bedkar in a slightly modified fonn so as to leave no room for doubt
that the conferment of the power to issue writs on other courts would be
without prejudice to the powers vested in the Supreme Court under clauses
(1) and (2) of the draft article*".

Of the other amendments, the one moved by Naziruddin Ahmad sought
the replacement of the words “in the nature of the writs of’ in clause (2)
by the words “or writs including writs in the nature of” with a view to
expressing the Supreme Court’s power to provide relief in cases of
infringement of fundamental rights in elastic and general terms and making
it clear that such power was not restricted to the issue of the writs specified
in the clause. Kamath suggested that it was not necessary to specify the
various writs individually and that the Supreme Court should bo left free
to evolve such remedies or writs as it might deem proper in each case.
V. S. Sarwate proposed the addition of an explanation to clause (3) to
the effect that in deciding matters arising out of the article the Supreme
Court would have 'the power to go into questions of fact. Such an explanation,
he said, was necessary in order to place a check on a panicky Legislature
going beyond the requirements of a particular case. Tajamul Husain sought

^Article 226 of the Constitution.

®Tlie corresponding, though not completely identical, provision in the Constitution
is article 359.

^Comments and Suggestions on the Draft Constitution, Select Documents IV, !(i),
pp, 51-2.

A. Vol. VII, p. 933.

FUNDAMENTAL EIGHTS

309

tile deletion of clause (4) on the ground that it was dangerous to arm the
executive with absolute power to suspend each and every one of the
fundamental rights as envisaged in clause (4) read with draft article 280\
Karimuddin recognized the necessity for suspending fundamental rights in
an emergency but thought that the circumstances in which this could
be done should be specifically laid down in clause (4) and that
the right should not be suspended except when there was a rebellion or
invasion.

Draft article 25 was in general widely acclaimed as the **coping-stone of
the structure of fundamental rights” and as the “cro'wning section of the
whole chapter on fundamental rights”. The general discussion on the
article mainly hinged round clause (4). N. G. Ranga strongly supported the
provision. He argued that just as individuals and groups had their 'rights,
society as a wliole had certain rights vis-a-vis individuals and groups
which were bent upon destroying that society, subverting the social order and
dissecting the social organization through violent means. Whenever there
was serious danger to the very concept of democracy, to the exercise of
democratic functions, to the institutions of democracy, it must be the duty
of the State to set aside the fundamental rights in order to safeguard the
people. Shibban Lai Saxena also considered the clause to be necessary;
he expressed the hope that it would be possible to drop it when the State
became stable. Rohini Kumar Choudhury was in favour of deleting the
clause or modifying it in such a way that the article would not be suspended
except under most unavoidable circumstances. Otherwise, he said, it would
have the evil effect of allowing even such forbidden practices as
untouchability and traffic in human beings to be carried on with impunity
when the article was suspended\

Ambedkar, replying to the debate, readily accepted the amendment moved
by Naziruddin Ahmad but not the others. The suggestion for the deletion
of clause (4) seemed to him to be an “extravagant demand”. In times of
emergency, he said, the superior right of the State to protect itself must
prevail ; otherwise, the individual himself would be in danger of losing his
very existence. The suspension of rights in clause (4) could only take place
in times of emergency and was' a common feature in all constitutions.
Allaying Tajamui Husain’s apprehensions that all the fundamental rights
might be suspended during an emergency, he said that when a proclamation
of emergency was issued, the only rights that would be suspended would
be those contained in draft articles 13^ and 25 and not others. Similarly,
the point raised by Karimuddin was, according to Ambedkar,. fully met by

^Corresponding to article 359 of the Constitution regarding suspension of the
enforcement of fundamental rights during emergencies.

*C. Del^„ VoL ' VII, pp., 937-50.

^Corresponding to article 19 of the Constitution, regarding freedom of speech etc.

FRAMING OF - INDIANS CONSfiTUTION

the provisions of draft article 275^ under which the President’s power to
issue a proclamation of emergency arose only when there was a threat to
the security of the country by reason of war or domestic violence ; and it was
only when such a proclamation was in force that the right could be suspended.

Referring to Kamath’s amendment, he pointed out that the draft article
not only empowered the Supreme Court to grant particular remedies, but
gave it a general power to evolve suitable remedies appropriate to the
occasion. The raison d'etre for mentioning these writs in the Constitution,
he said, was that they were in existence in Britain for a number of years
and had given complete satisfaction in protecting the liberties of the subject.
Not only were the nature and remedies of the writs: well known to every
lawyer, but they had been found almost knave-proof and fool-proof. Dealing
with the amendment moved by Sarwate, Ambedkar said that the writs
mentioned in the article fell into two categories, vfz., “prerogative writs” and
“writs in action”.

A writ of mandamus, a writ of prohibition, a writ of certiorari can be
used or applied for both; it can be used as a prerogative writ or it may
be applied for by a litigant in the course of a suit or proceedings. The
importance of these writs which are given by this article lies in the fact
that they are prerogative writs; they can be sought for by an aggrieved
party without bringing any proceedings or suit. Ordinarily, you must
first file a suit before you can get any kind of order from the court,
whether the order is of the nature of mandamus, prohibition, certiorari or
anything of the kind. But, here, so far as this article is concerned, without
filing any proceedings you can go straight away to the court and apply for
the writ. The object of the writ is really to grant what I may call interim
relief. For instance, if a man is arrested, without filing a suit or a proceed-
ing against the officer who arrests him, he can file a petition to the court for
setting him at liberty ... In a proceeding of this kind where the application
is for a prerogative writ, all that the court can do is to ascertain whether the
arrest is in accordance with law. The court at that stage will not enter
into the question whether the law under which a person is arrested is
a good law or a bad law. . . Ail that the court can inquire in a habeas
corpus proceeding is whether the arrest is lawful. . . Consequently the
amendment moved by my friend Shri V. S. Sarwate, if I may say so, is
quite out of place.

Finally, on the significance of incorporating the writ remedies in the
Constitution, Ambedkar observed that in a sense the writs were not new.
Habeas corpus existed in the Code of Criminal Procedure ;
found a place in the Specific Relief Act ; and other writs were mentioned in
various laws. The essential difference in the position was that these laws

^Corresponding to article 352 of the Constitution, regarding proclamation of
emergency, . .

FUNDAMENTAL RIGHTS

311

could be amended and the safeguards taken away wltliout difficulty , by a
legislature wliicli happened to have a majority and that majority happened
to be a singie-miEded majority. In future it would not be possible for any
Legislature to take away the writs mentioned in the article unless and until
the Constitution itself was amended. This, claimed Ambedkar, was one
of the greatest safeguards that could be provided for the safety and security
of the iiidividiial. He summed up the importance and significance of the
article thus :

If I was asked to name any particular article in this Constitution as the
most important — an article without which this Constitution would be a
nullity — I could not refer to any other article except this one. It Is the
very soul of the Constitution and the very heart of id.

Put to vote, the amendments moved by Ambedkar and Naziruddin Ahmad
were adopted by the Assembly and all others negatived. Subsequently, at
the revision stage, it was renumbered as article 32 :

32. (I) The right to move the Supreme Court by appropriate proceedings
for the enforcement of the rights conferred by this Part is guaranteed.

(2) The Supreme Court shall have power to issue directions or orders or
writs, including writs in the nature of habeas corpus, mandamus,
prohibition, quo warranto and certiorari, whichever may be appropriate,
for the enforcement of any of the rights conferred by this Part.

(3) Without prejudice to the powers conferred on the Supreme Court by
clauses (1) and (2), Parliament may by law empower any other court to
exercise within the local limits of its jurisdiction all or any of the powers
exercisable by the Supreme Court under clause (2).

(4) The right guaranteed by this article shall not be suspended except as
otherwise provided for by this Constitution.

Power to Parliament to modify fundamental rights in their
application to Armed Forces {Article 33)

Restriction on fundamental rights while martial law is in force
in any area {Article 34)

It has already been noticed that the basis on which the fundamental rights
were formulated was that all the rights should be enforceable in courts of
law and that, in fact, the right to judicial remedy against any transgression
of these rights either by the executive or by the Legislature should itself be
recognized as a fundamental right. This in turn led to the decision that the
formulation of these rights should be made with great care and in
relation to each right the circumstances in which it might be invaded by the
State in the interests of the nation or of social progress should also be laid
down with precision. Thus each right was subject to appropriate resMr\'ations

'C. A. DeL, Vol. VII, pp. 950-3.

312

FRAMING OF' "INDIANS CONSTlTUtlON

which gave to the executive and the ' Legislature powers to disregard it 'if
the safety and welfare of the State so required.

One of the points that came up at an early stage for consideration was
the extent to which these rights would apply to members of the armed forces.
By virtue of their position, they had necessarily to be subject to a code
of conduct and discipline not entirely consistent with the exercise of
fundamental rights as they would apply to the ordinary citizen. This was
recognized in the preliminary stages of the discussion in the sub-committee.
Munshi had provided that the Union Legislature would by law be entitled
to determine to what extent any of the fundamental rights should be
restricted or abrogated for the members of the armed forces or forces
charged with the maintenance of public order to ensure the fulfilment of their
duties and the maintenance of disciplined The sub-committee accepted this
reservation at its meeting of March 30, 1947 ; there was no controversy and
no discussion, and the clause figured as clause 31 in its report to the Advisory
Committeed It was duly adopted by the committee and incorporated as
clause 23 of its interim reportd The Assembly also adopted this provision
without any discussion on May 2, 1947d
The provision was later adopted by the Drafting Committee without any
material change and figured as article 26 of the Draft Constitution of February
1948:

Parliament may by law determine to what extent any of the rights
guaranteed in this Part shall in their application to the members of the
armed forces or forces charged with the maintenance of public order be
restricted or abrogated so as to ensure the proper discharge of their duties
and the maintenance of discipline among themd
The article was non-controversial ; no amendment of substance was moved
and it was adopted by the Assembly on December 9, 1948, with a minor
verbal change suggested by Ambedkar substituting “conferred by” for
“guaranteed in’”.

At the revision stage, the Drafting Committee numbered it as article 33 ;
the committee at this stage introduced a new article 34 providing for
indemnity to public servants and others for any action taken by them for
the maintenance or restoration of order in any area where martial law was
in force. Justifying the need for the new article, the committee observed that
the fundamental rights in the Constitution might prevent validation by the
Legislature of acts done during a period when martial law was in force
and also prevent the indemnifying of persons in the service of the Union

^Munshi’s draft, article XIV (4), Select Documents IL 4(ii)(b), p. 80.

^Select Documents II, 4(viii), p. 175.

^!bid., n, 7(i), p. 299.

^aA.Dek,YollIlp:'522.

^Select Documents III, 6, pp. 526-7.

X. A. Deb.. Vol. Vn, p. 955.

FUNDAMENTAL RIGHTS

313

or of a State in respect of action taken by them during such period. The
new article read :

Notwithstanding aii}^ thing in the foregoing provisions of this Part,
Parliament may by law indemnify any person in the service of the 'CJiiioii
or of a State or any other person in respect of any act done by him in
connection with the maintenance or restoration of order in any area
within the territory of India where martial law was in force or validate
any sentence passed, punishment iiihicted, forfeiture ordered or other act
done under martial law in such areah

When the changes made by the Drafting Committee at the revision stage
were considered by the Constituent Assembly on November 14* 1949, a,
number of amendments to the new article 34 were proposed by members. Of
these, the one moved by Shibban Lai Saxena sought deletion of the article ;
he feared that it might encourage officers working in a martial law area
to commit excesses in the hope of indemnification by an Act of Parliament.
Kamath favoured the omission of any reference to martial law in the
Constitution on the ground that there were sufficient provisions in the
Constitution for the maintenance of public order and peace and tranquility
ill the country. However, in case the omission of the article was not agreed
to, Kamath had three amendments which in effect sought that the provision
for the indemnification of persons for acts done during martial law should
be restricted to persons in the service of the Union or of a State and the
indemnification should not cover any other person. In support of the new
article, Brajeshwar Prasad pointed out that extraordinary situations might
arise in the country which could not be tackled by the ordinary law of the
land and provision for martial law would be necessary. The fear that officers
would resort to excesses or act without jurisdiction, he said, was ill-founded
since Parliament had the full right to review their conduct".

Replying to the debate on November 16, 1949, Ambedkar drew attention
to article 20 which provided that no person should be convicted for any
offence except the violation of a law in force at the time of the commission
of the act charged as an offence ; and to article 21, which said that no person
would be deprived of his life or personal liberty except according to
procedure establishsed by law.

He explained that when martial law was introduced — usually when there
was a riot, insurrection or rebellion or threat of overthrow of authority— the
officer ill charge of martial law declared that certain acts would be offences
against his aiitliority, and prescribed his own procedure for the trial of
persons who offended against acts notified by him as offences. An act so
notified by the military commander would not be an offence against a law

^Draft Constitution as revised by the Drafting Committee, Nov. 3, 1949, Select
Documents TV t IB, pp. 747, 761.

^C. A. Deb., Vol XI, pp. 46S-9.

314

FRAMING OF INDIANS CONSTITUTION

in force because the commaiider was not the law-making authority ; nor
would file procedure laid down by him be according to the law. If article
34 was not included in the Constitution, the administration of martial law
would be impossible. Referring to Kamath’s amendments, Ambedkar said
that when martial law was in force, it was the duty, not merely of the
military commander and his entourage, but the duty of every individual
citizen of the State to take the responsibility on his own shoulders and
come to the help of the authority for restoring order. It was, therefore,
necessary that indemnification was not restricted to persons in the service
of the Union or of the State but extended to every person who came forward
“to the rescue of the State to establish peace”h

, The amendments of Saxeiia and Kamath — the one seeking to delete the
article and the other to restrict it to persons in the service of the Union or
of a State — were negatived by the Assembly and the new article 34 adopted
in the form in which it was proposed by the Drafting Committee":

33. Parliament may by law determine to what extent any of the rights
conferred by this Part shall, in their application to the members of the
Armed Forces or the Forces charged vrith the maintenance of public
order, be restricted or abrogated so as to ensure the proper discharge of
their duties and the maintenance of discipline among them.

34. Notwithstanding anything in the foregoing provisions of this Part,
Parliament may by law indemnify any person in the service of the Union
or of a State or any other person in respect of any act done by him in
connection with the maintenance or restoration of order in any area
within the territory of India where martial law was in force or validate
any sentence passed, punishment inflicted, forfeiture ordered or other act
done under martial law in such area.

Legislation to give effect to fundamental rights {Article 35)

Even in the preliminary stages of discussion of the fundamental rights,
it was recognized that legislation would be necessary if full effect was to be
given to the guarantees of the rights of the citizens. For instance, Ambedkaris
first draft of fundamental rights, as already noticed, provided that any
discrimination in the use and enjoyment of public amenities would be an
offence and that subjecting a person to forced labour or involuntary servitude
would also be an offence. In order to provide for the character of the
offence and the nature of the punishment the draft included a clause to say
that all. offences under the section relating to fundamental rights would be
cognizable offences ; and that the Union Legislature should make laws giving
effect to such provisions as required legislation to be enacted and prescribing

A. Deb,. Vol. XI, pp. 577-8.
HMd., p. 584.

f UNBAMENTAL WGHtS

315:

punishment for those acts, which were declared to be offencesh The
Sub-Committee on Fundamental Rights accepted this provision at its meeting
on March 30, 1947, and reproduced it as clause 34 in its draft report and as
clause 32 in its final report to the Advisory Committee".

In a minute of dissent appended to the report, K. M. Paoikkar expressed
Ills disagreement with the proposal to vest this power of legislation exclusively
in the Union Legislature. While the rights regarding the maintenance of the
liberty of person and property and those to which the nation attached
supreme importance like freedom of conscience should be enforceable at
the Union level, other rights, he felt, could be left to the units®. Two
arguments v/ere advanced in support of his contention. ' The complex of
authority created by enforceable fundamental rights was so large that it
would vest in the Union Government supervision, control and sanctions to an
extent that might nullify the very idea of the autonomy of the units. To take
one example ; if it was possible for eve-ry citizen to have the normal
administrative refusal of a district authority or a local Goveniment to the
erection of places of worship contested legally and fought out in an appeal
in the Supreme Court, administration would be rendered impossible. The
article, instead of giving to the citizen a valuable right, would create endless
complications for local administrations and fan the flame of communal
discord at every stage. Panikkar’s second objection was that the enforcement
of such rights, excepting those involving personal liberty, might bring the
Union into conflict with the units ; such conflicts might in the last resort
involve the use of the armed forces of the Union to compel a unit to abide
by a decision of the Supreme Court. In a country like India where the
Provinces and Indian States might conceivably defy or refuse to give effect
to a decision of the Supreme Court, there would be insuperable difficulties
in the Union enforcing military, political and economic sanctions'^.

Panikkaf s views did not appeal to the Advisory Committee which endorsed
the clause as recommended by the subcommittee and incorporated it in its
report to the Constituent Assembly as clause 24 :

24. The Union Legislature shall make laws to give effect to those provisions
of this Part which require such legislation and to prescribe punishment
for those acts which are declared to be offences in this Part and are not
already punishable®.

^Ambedkar’s draft, article II (I) (21), Select Documents 11, 4(ii) (d), p, 88.

/“Minutes, March 30, 1947; Draft Report, Annexure; Report, Arnio^xum, Select
Documents If, 4(iii), (iv) and (viii), pp. 133, 141-2, 175.

^Select Documents II, 4(ix), pp. 189-90. An annexure attached to the minute of
dissent contained a list of provisions on fundamental rights, which, Panikkar thought,
could appropriately be handed over to the units for enforcement

^Report, Minute of dissent by K. M. Panikkar. Select Documents ll, 4(ix),
pp. 188-9.

^Select Documents II, 7(i), p. 299. Clause 24 was based on the model of
Amendment XIII, Section 2 of the Constitution of the U.S. A., which enabled the

316

FRAMING OF INDIANS ' CONSTITUTION

: When on May 2, 1947, Vallabhbliai Patel moved the clause for the
acceptance of the Assembly, it was adopted without any discussion'. The
Constitutional Adviser reproduced it in his draft as clause 30.

The Drafting Committee discussed this clause in November, 1947. Tte
committee revised the article and added a proviso continuing in force all
existing laws making provision for this purpose ; as so revised it appeared
as article 27 of the Draft Constitution :

27. Notwithstanding aii>thing elsewhere contained in this Constitution,
Parliament shall have, and the Legislature of a State for the time being
specified in Part I or Part III of the First Schedule shall not have, power
to make laws —

(a) with respect to any of the matters which under this Part are required
to be provided for by legislation by Parliament, and

(b) for prescribing punishment for those acts which are declared to be
offences under this Part ;

and Parliament shall, as soon as may be after the commencement of this
Constitution, make laws to provide for such matters and for prescribing
punishment for such acts :

Provided that any law in force in the territory of India or in any part
thereof with respect to any of the matters referred to in clause (a) of this
article or providing for punishment for any act which is declared to be
an offence under this Part shall continue in force therein until altered or
repealed or amended by Parliament or other competent authority^

When the Draft was circulated, a few amendments were suggested — some
of them by the Drafting Committee. The amendments suggested by the
committee were of a minor nature and article 27, with the amendments
proposed' by the committee, read:

27. Notwithstanding anything elsewhere contained in this Constitution,
Parliament shall have, and the Legislature of a State for the time being
specified in Part I or Part III of the First Schedule shall not have, power
to make laws —

(a) with respect to any of the matters which, under clause (2-a) of article
10, article 16, clause (3) of article 25, and article 26, may be provided
for by legislation by Parliament, and

(b) for prescribing punishment for those acts which 'are declared to be
offences under this Part ;

and Parliament shall, as soon as may be after the commencement of this
Constitution, make laws for prescribing punishment for the acts referred
to in clause {b) of this article :

Congress to enforce by legislation a particular right guaranteed by the Constitution. ,
Draft Report , of the Sub-Committee, Annexure: B. N. Rau’s -explanatory notes on
draft clauses : see notes on clauses 33 and 34. Select Documents 11, 4(v), p. 150.

4a.4. D^^.,.VoL III, p. 522.

^Select Documents III, l(i) and 6, pp. 12, 527.

FUNDAMENTAL RIGHTS

317

Frovided that any law in force immediately before the commencement of
this Constitution in the territory of India or any part thereof with respect
to any of the matters referred to in clause (a) of this article or providing
for punishment for any act referred to in clause {b) of this article shall,
subject to the terms thereof, continue in force therein^ until altered or
repealed or amended by Parliament.

Explanation In this article the expression 'law in force'’ has the same
meaning as in article 307 of this Constitution^,

When draft article 27 came up before the Constituent Assembly for
consideration on December 9 , 1948, there was hardly any discussion, and
no further amendments were proposed. In reply to a question by
H. V. Kamath, Ambedkar thus explained the scheme of the- draft
article ■:

The first principle is that wherever this Constitution prescribes that a law
shall be made for giving effect to any fundamental right or where a law
is to be made for making an action punishable, which interferes with
fundamental rights, that right shall be exercised only by Parliament,
notwithstanding the fact that having regard to the List w^hicli deals with
the distribution of power, such law may fail within the purview of the
State Legislature. The object of this is that fimdameotal rights, both as
to their nature and as to the punishments involved in the infringement
thereof, shall be uniform throughout India. Therefore, if that object is
to be achieved, namely, that fundamental rights shall be uniform and the
punishments involved in the breach of fundamental rights also shall be
uniform, then that power must be exercised only by Parliament, so that
there may be uniformity.

The second thing is this : if there are already Acts which provide
punishments for breaches of fundamental rights, unless and until Parliament
makes another or a better provision, such laws will continue in operation®.
Ambedkar added that it was only in specific matters that Parliament was
being given penal authority and it was therefore considered desirable to
specify the relevant articles which were to be dealt with exclusively by
Parliament. The article was adopted as amended'. At the revision stage,
the I>raftmg Committee renumbered it as article 35 :

35. Notwithstanding anything in this Constitution,—

(a) Parliament shall have, and the Legislature of a State shall not have,
power tO' make laws —

(i) with respect to any of the matters which under clause (3) of article
16, clause (3) of article 32, article 33 and article 34 may be provided
for by law made by Parliament; and

A Vol VIII, p. 956.
mid,, p. 957.
mid,, p. 958.

318

FRAMING OF INDIA’S CONSTITUTION

(ii) for prescribing punishment for those acts which are declared to be
offences under this Part;

and Parliament shall, as soon as may be after the commencement of this
Constitution, make laws ' for prescribing punishment for the acts referred
to in sub-clause (ii) ;

(b) any law in force immediately before the commencement of this
Constitution in the territory of India with respect to any of the matters
referred to in sub-clause (i) of clause (a) or providing for punishment for
any act referred to in sub-clause (ii) of that clause shall, subject to the
terms thereof and to any adaptations and modifications that may be made
therein under article 372, continue in force until altered or repealed or
amended by Parliament

Explanation : In this article, the expression “law in force” has the same
meaning as in article 372.

DIRECTIVE PRINCIPLES OF STATE POLICY

The formulation of social and economic objectives in national constitutions
owes its origin essentially to the realization that the content of political
freedom is impaired by the absence of social justice, and that without
adequate protection for social and economic rights, constitutional guarantees
of what are known as ''classical individual liberties” such as the right to
equality, liberty of person and freedom of speech and association may lose
much of their significance. This close association between political freedom
and social justice has become a common concept since the French Revolution.
Since the end of the First World War, it has become increasingly recognized
|that peace in the world can be established only if it is based on social
justice^ Accordingly, most modern constitutions contain declarations of
social and economic principles which emphasize among other things the duty
of the State to strive for social security, and to provide work, education and
proper conditions of employment for its citizens. By their very nature
economic and social rights are not suitable for enforcement through legal
action and a constitutional declaration is essentially in the nature of a pledge
that the policies of the State will be consistently directed towards the
attainment of certain ends and that legislation will be based on certain
guiding principles. Such a declaration is made, to use the celebrated words
of the Declaration of the Rights of Man (1793):

In order that this declaration, being ever present to all the members of the
soda! body, may unceasingly remind them of their rights and duties; in
order that the acts of the legislative power and those of the executive power
may be each moment compared with the aim of every political institution
and thereby may be more respected; and in order that the demands of
citizens, grounded henceforth upon simple and incontestable principle, may
always take the direction of maintaining the constitution and welfare of
alF'

The concept of a declaration of policy in regard to social and economic
obligations of the State cannot be said to be foreign to the genius of India.
In -the fourth century B. C., we find in Kautilya’s Arthasastm specific
injunction to thC' effect that "the' King shall provide the orphan, the dying,
the infirm, the afflicted and the helpless with maintenance; he shall also

^Preamble to the Gonstitution of the International Labour Organisation. See
Constitutional Provisions concerning Social and Economic Policy (I.L.O*, Montreal,
1944), p. 5.

pp. ,xii, XX.

320

FRAMING OF INDIANS CONSTITUTION

provide subsistence to helpless expectant mothers and also to the children
they give birth to”h

The leaders of India’s freedom movement visualized that in the new
dispensation following political freedom, the people should have the fullest
opportunities for advancement in the social and economic spheres and that
the State should make suitable provision for ensuring such progress. Among
the fundamental rights adopted by the All Parties’ Conference (1928) was
a provision entitling every citizen to free elementary education and another
which required the enactment of suitable laws for the maintenance of health
and fitness for work of all citizens, a living wage for every worker, the
protection of motherhood, the welfare of children and provision of assistance
in old age, infirmity and unemployment. Similar provisions were also
contained in the Declaration of Fundamental Rights, adopted by the Indian
National Congress in 1931, which, in addition, specifically declared that ‘‘in
order to end the exploitation of the masses, political freedom must include
real economic freedom of the starving millions”, and that the organization
of economic life must conform to the principles of justice".

Hie 1937 Constitution of Ireland made a distinction between the
“fundamental rights” strictly so called, and the “directive principles of social
policy’"’, the latter being expressly excluded from the purview of the courts.
A similar distinction was also recognized by Lauterpacht in his “International
Bill of Rights” published in 1945. In India, the idea of the division of
rights to be incorporated in the Constitution into justiciable and non-
justiciable rights was for the first time envisaged in the report of the Sapru
Committee in 194445\

In one of the pamphlets issued for the use of the members of the
Constituent Assembly, B. N. Rau, the Constitutional Adviser, referred to the
Irish Constitution and to Lauterpacht’s International Bill of Rights. He
recommended the classification of the rights into two parts, one dealing with
fundamental principles of State policy and the other with fundamental rights
as such :

There are certain rights which require positive action by the State and which
can be guaranteed onlv so far as such action is practicable, while others

N. Rau’s address to the Indian Council of World Affairs, August 10, 1949.

^ Nehru Report. Select Documents I, 16, pp. 59-60.

"B. Pattabhi Sitaramayya, The History of the Indian National Congress, Vol. I,
p. 463.

^Constitutional Proposals of the Sapru Committee, Appendix II (Recommendation
No. 17) and Chapter VII, pp. 256-72, The Sapru Committee was formed in 1944,
with the approval of Mahatma Gandhi, Its object was to understand the point of
view of each political party and act as a conciliation board by establishing contacts
with leaders of all parties and to recommend on its own responsibility a solution of
India’s political problems. The members of the committee were men eminent in
Indian public life but not belonging to any of the organized political parties. Its
Chairman was Tej Bahadur Sapru.

DIRECTIVE PRINCIPLES OF STATE POLICY

32!

merely require that the State shall abstain from prejudicial action,. Typical
■' • , of the former is the .right , to work, which cannot be guaranteed further
than by requiri,ng the State, in the language of the Irish Constitution, “to

^ direct its policy' towards securing that the citizens may, through their

. occupations, ^ find the means of making reasonable provision fo,r their
domestic needs” : typical of the latter is the right which requires, in the
language of the American Constitution, that “the State shall not deprive any
citizen of his liberty without due process of law”. It is obvious that rights
of the first, type are not normally either capable of, or suitable for,
enforcement by legal action, while those of the second type may be so
enforcedh

The proposal relating to the incorporation of non-justiciable rights in the
Constitution did not initially find favour with some members of the Sub-
Committee on Fundamental Rights. At the first meeting of the sub-committee
held Oil February 27, 1947, Alladi Krisimaswami Ayyar saw no use in laying
down in the Constitution precepts which would remain unenforceable or
ineffeciive. A similar view was expressed by Masani and Ambedkarl The
most outspoken critic of the proposal was Munshi who observed, in a note
submitted to the sub-committee, that most of the general declarations found
in national constitutions and intemational documents had proved ineffective
to check the growing power of the modern State. On the contrary, they
created an unwarranted impression of progress and freedom. The fate of
the Weimar Constitution was an instance in point. In India particularly,
he thought, general precepts which might be considered less than necessary
by an advanced thinker on socialistic lines would not be looked at, much
less understood, or applied in some parts of the country where feudal notions
were still deeply ingrained^

A general feeling against giving constitutional expression to “mere precepts”
was also discernible, though indirectly, in some of the drafts on fundamental
rights submitted to the sub-committee, in which not only all manner of rights,
political, economic and social, but also precepts of policy were listed under
the title “fundamental rights”. For example, among those enumerated in
Munshi’s draft were : the right to work,, a living wage, conditions of work
necessary to ensure a decent standard of life ; and the right of every citizen
to have free primary education with a corresponding “legally incumbent” duty
on every unit to introduce free and compulsory primary education^
Similarly, Ambedkar’s draft contained an elaborate clause designed to
establish State socialism in important fields of economic life by the law
of the Constitution itself, so that the implementation of the plan would

’^Select Documents 11, 33.

^Minutes, February 27, 1947; Ambedkar’s draft, explanatory notes on article
II(II) (1). Select Documents 11, 4(iii) and (ii) (d), pp. 115, 97.

^Select Documents 11, 4(ii)(b), p. 69.

^Ibid., articles VII(l), Vni(l) and (2), p. 77.

322

FRAMING OF INOIA’S CONSTITUTION

not be left to the will of the Legislature".

'■■The the propmal did not, however, remain ' formidable for

long^'' ■ Alladi Krishii^ Ayyar supported it in a note submitted on
M.afch-14, 1947, in which he stressed the distinction betw-een Justiciable rights
and rights which ' were “merely intended as a guide and directing objectives
to Stale policy”". Gradually, most other members of the sub-committee also
came round to this view, realizing that it was not practicable to categorize
declarations of social and economic policies as justiciable rights. On March
27, 1947, the sub-committee came to the conclusion that the clauses relating
to the right to work, to secure a living wage, etc., recommended by Munshi,
were non -justiciable and cO'Uid not be incorporated in the chapter on
justiciable fundamental rights". Three days later, the sub-committee, having
tentatively completed its formulation of justiciable fundamental righcs, turned
its attention to the formulation of the directive principles of social policy
and adopted a number of clauses. Some more directive principles were
added to this list on the following day, when it was decided also to add at its
beginning a preamble to define the position to be accorded to these principles;
The principles of social policy set forth in this Part arc intended for the
general guidance of the appropriate Legislatures and Governments in India
(hereinafter called collectively as the State). The application of these
principles in legislation and administration shall be the care of the State
and shall not be cognizable by any courts

With a few verbal changes this preamble was incorporated in the draft
report of the sub-committee. In addition the draft report contained eleven
clauses. These clauses gave directions to the State to promote international
peace and security as well as internal peace, and covered the whole range of
political, economic and social well-being of the State and the citizen :

36. The State shall strive to promote the welfare of the whole people by
securing and protecting as effectively as it may a social order in which
justice, social, economic and political, shall inform all the institutions of
the national life.

37, The State shall, in particular, direct its policy towards securing—

(i) that the citizens, men and women equally, have the right to an adequate
means of livelihood;

(ii) that the ownership and control of the material resources of the
community are so distributed as best to subserve the common good ;
(ill) that the operation of free competition shall not be allowed so to
develop as to result in the concentration of the ownership and control
of essential commodities in a few individuals to the common detriment ;

Ambedkar’s draft, article II(II)(4) and explanatory notes thereon,
Boeumen^s 11, 4(ii) (d), pp. 89-90, 99.

^Select Documenisll, 4(11) (siX p. 61.

^Minutes, March 27, 1947, Select Documents 11, 4(}nX p. 125.

^Ibid., Minutes, March 30 and 31, 1947, pp. 134, 136.

DIRECTIVE PRINCIPLES OF -STATE POLICY

323

(iv) that, there shall be equal pay for equal wo,rk for both men and women ;

(v) that the st,reiigth and health of workers, men and women, and the
tender age of children shall not be abused and that citizens shall not be
forced by economic necessity to enter avocations unsiiited to ttieii: age and
strength ;

(vi) that childhood and youth are protected against expioitatio,n - and
against moral and material abandonment.

38. The Stale shall, within the limits of its economic capacity and
development, make effective provision for securing the right to work, to
education and to public assistance in case of unemployment, old age,
sickness, disablement, and other cases of undeserved want.

39. The State shall make provision for securing just and humane conditions
of work and for maternity relief for w'orkers.

40. The State shall endeavour to secure, by suitable iegisiation, economic
organization and in other ways, to all workers, industrial or otherwise, work,
a living w'age, conditions of work ensuring a decent standard of life and
full enjoyment of leisure and social and cultural opportunities.

41. The State shall endeavour to secure for the citizens a uniform civil
code.

42. I’he State shall endeavour to secure that marriage shall be based only
on the mutual consent of both sexes and shall be maintained through mutual
cooperation, with the equal rights of husband and wife as a basis. The
State shall also recognize that motherhood has a special claim upon its
care and protection.

43. The State shall promote with special care the educational and economic
interests of the weaker sections of the people, and, in particular, of the
Scheduled Castes and the aboriginal tribes, and shall protect them from
social injustice and all forms of exploitation.

44. The State shall regard the raising of the level of nutrition and the
standard of living of its people and the improvement of public health as
among its primary duties.

45. The State shall promote internal peace and security by the elimination
of every cause of communal discord.

46. The State shall promote international peace and security by the
elimination of war as an instrument of national policy, by the prescription
of open, just and honourable relation between nations, by the firm
establishment of the understandings of international law as the actual rule
of conduct among governments and by the maintenance of justice and
the scrupulous respect for treaty obligations in the dealings of organized
people with .one anotheri.

■Miimtes, March 30 and 31, 1947: Draft Report, Annexure, ^Select: Doatmems
II, 4(iii) and-' (w), pp.

Clauses 35, 36 and sub-clauses (i), (ii), (iii) and (v) of clause 37 were adaptations
of the various clauses contained in section 45 of the Irish Constitution. Sub-clause (iv)

3:24

FRAMING. OF INDIA’S CONSTITUTION

Explaking the nature of' its recommendations, the sub-committee stated
:in its, draft report that' those rights which could be normally' enforced by legal
action were put down as ‘‘justiciable rights” and other rights either not
normally capable of, or suitable for, enforcement by legal action, were named
'‘non-justiciable rights”. As an example of the latter the .. sub-committee
mentioned the clause' requiring the .State to endeavour to secure a decent
standard of life for all workers. Obviously, it w^as as impossible for a
worker to prove as for a court to find that a general right- of this kind had
been' infringed in a given case. The sub-committee, therefore, deemed it lit
to place such rights in the chapter on “nomjusticiable rights” and made it
clear tliat these rights w^ere “intended to be directions for the general guidance
of the State and were not cognizable by any court”.

This did not satisfy some members of the sub-committee. Rajkumari Amrit
Kaur and Mrs. Hansa Mehta felt that these rights, though not enforceable
by legal action, were nonetheless fundamental in character inasmuch as they
were vital to the well-being and ordered progress of the State. They urged
therefore that a suitable provision might be incorporated in the chapter
enjoining the State to take as soon as possible the necessary action in
fulfilment of these directives^ K. T. Shah was apprehensive that in view of
the distinction between “justiciable” and “non-justiciable” rights, the latter
category was likely to be treated as so many pious wishes. Instancing the
right to useful work or employment, Shah observed that, even though this
was considered non-justiciable, it could be made real and effective if the
State was charged with a categoric obligation to provide useful work for
every citizen who was able and qualified. It would then be necessary for
the State to prepare a comprehensive well-knit plan for the development
of all the resources of the country for maintaining a given standard of
living for every member of the community. Shah suggested that the
principles included in the so-called non-justiciable rights should not be

of clause 37 was comparable to article 122 of the USSR Constitution and
sub-clause (vi) was adapted from the Constitution of Cuba, Title V, section 45,
para 2. Clauses 38 and 39 were adapted from Lauterpacht’s “An International Bill
of the Rights of Man”, articles 13 and 14 respectively, but the former clause could
also be compared with the provisions contained in articles 118 and 120 of the
USSR Constitution. Clause 40 was again based on the Irish Constitution, section
45(2)(i), and the USSR Constitution, article 119; clause 41 had a precedent in
section 94 of the Constitution of Canada; while the next clause was comparable
to article 54, para 2 of the Swiss Constitution and article 119, paras 1 and 3 of the
Weimar Constitution. Clauses 43 and 45 were considered to be necessary in the
peculiar conditions of India. Clause 44 was taken from the recommendations of
the United Nations Conference on Food and Agriculture, 1943 and clause 46 was
adapted from the Havana Declaration of 1939 made by representatives of the
Governments, employees and work-people of the American continent See B, N.
RaiTs notes on Draft Report. Select Documents II, 4(v)(c), p. 150.

Tetter from Rajkuman Amrit Kaur to B. R Rau, March 31, 1947, Select
Documents Jl, 4iv){h), p. 147.

DIRECTIVE PRINCIPLES OF STATE POLICY

325

treated as mere directions of policy for general guidance; they must be
regarded as tlie objectives of national activity and it must be the endeavour
of every unit as well as the Union to give effect to themh
111 tile light of these criticisms the sub-committee, in finalizing its report
at its meeting on April 15, 1947, decided to place special ^ emphasis on the
fundamental character of these principles. Accordingly it decided to redraft
the opening clause as folloivs :

The principles of policy set forth in this Part are intended for- the guidance
of the State, ' While these principles shall not be cognizable by any court,
they are nevertheless fundamental in the governance of the country., and
their ■ application in the making of laws shall be the duty of the Stated
The final report adopted by the sub-committee also contained a new
provision, earlier suggested by Munshi, placing on the State the obligation
to protect, preserve and maintain 'monuments or objects of national
importance®. Forwarding its report to the Chairman of the Advisory
Committee, the sub-committee stated that the distinction between rights
enforceable by appropriate legal process and provisions which were in the
nature of fundamental principles of social policy, followed the Irish model
and adopted a middle course between the one adopted in the Constitution
of the United States: of America and the one pursued in recent European
constitutions which had mixed up the two sets of rights^

Some members of the committee were not fully satisfied with the report.
K. T. Shah, for example, again expressed his fear that the whole scheme of
the directives might be reduced to a “needless fraud”, “an excellent window-
dressing without any stock behind that dressing”. M. R. Masani, Mrs. Hansa
Mehta and Rajkumari Amrit Kaur held that one of the factors keeping India
back from advancing to nationhood was the existence of personal laws based
on religion. They suggested, therefore, the transfer of the clause regarding
a uniform civil code to the part dealing with justiciable rights*.

The Minorities Sub-Committee considered the various clauses and had one
comment on the clause proposing a uniform civil code for all citizens. The
sub-committee agreed that a uniform civil code was eminently desirable, but
felt that the application of such a code should be made on an entirely
voluntary basis; in its interim report the sub-committee recommended that

^K. T. Shah’s letter to B. N. Rau, April 10, 1947. Select Documents II, 4(v)(0,
pp. 153-4.

Select Documents Uj 4(vii), p. 168.

'^Earlier, this provision which originated as article VI(IO) of Munshi’s draft Had
been accepted by the sub-committee as a justiciable right: sub-committee minutes,
March 27, 1947; draft report, annexure, clause 31. Select Documents 11, 4(m) and (iv),
pp. 125,. 141.

^Select Documents II, 4(viii), p. 169.

^Report of the sub-committee ; Minutes of Dissent, Select Domments II, 4(ix),
p. 177. ■

326

FRAMING OF INDIA’S CONSTITUTION

ihe' clause regarding a uniform civiLcode be suitably redrafted^

. When the Advisory Committee considered the Reports of the Sub-
committee on Fundamental Rights and Minorities, it fully endorsed the
geiierarprincipie which laid stress on the fundamental nature of the
directives, but made certain changes. Two clauses were deleted — those
relating to freedom of marriage and the promotion of internal peace and
security by the elimination of every cause- of communal discord-while the
clause imposiog on the State a duty to provide free and compulsory primary
education within a period of ten years from the commencement of the
Constitution, which earlier had been included among justiciable rights, was
included as a directive principle. With these changes the list of the
'fundamental principles of governance” was incorporated in the committee’s
supplementary report submitted to the Constituent Assembly on August 25,
19471

In the general discussion that followed — the clauses as such, were not
considered fay the Assembly at this stage— doubts were again expressed by
some members regarding the utility and effectiveness of the directives in the
form in which they were sought to be made part of the Constitution. A
common criticism was that since there was no provision for making the
implementation of these principles obligatory on the Union and unit
Governments, their incorporation in the Constitution could hardly serve any
purpose or give any satisfaction to the people. Another criticism was that
these principles were borrowed from other countries, and that the Advisory
Committee had bodily adopted the provisions of the Irish and some other
constitutions without giving much thought to their usefulness. Typical of
die comments made were the observations of B. Das :

I am not satisfied with the opinion of the legal savants and great authorities
on law in this House who interpret the functions of Government as justiciable
and non-Justiciable. They have said that we cannot include in the Union
Constitution of India what the Government has to do for the people. I
think it is the primary duty of Government to remove hunger and render
social justice to every citizen and to secure social security. . . I am not
satisfied, although portions of the Soviet Constitution or the Irish Constitution
are somehow made into a jumble and included in these twelve paragraphs,
that they bring any hope to us. The teeming millions do not find any
hope that the Union Constitution . . . will ensure them freedom from
hunger, will secure them social justice, will ensure them a minimum standard
of living and a minimum standard of public health®.

In the Draft Constitution prepared by the Constitutional Adviser all the
provisions regarding fundamental rights and directive principles were included

^Select Documents 11, 5(ii), p. 209.

Hbid., 7(iv), pp. 304-6.

A, .Deb., Vol. V, pp, 361-78.

DIRECTIVE PRINCIPLES OF STATE POLICY

327 ,

in Part III. This part was divided into three chapters* the first containing
general provisions, the second fundamental rights, and the third. “Directive
.Principles of State Policy”. The provision stressing the fundamental , nature
of the directives was .included in the first chapter of general provisions. The.
directi.ve principles formulated by the Advisory Committee were themselves
i.acorporated in the third chapter^

Subsequently, in the course of his tour of the U.S.A., Canada, Ireland and
the United Kingdom,, B. N. Rau discussed the position of the directive
principles in relation to the fundamental rights, especially in. the light of
their working in Ireland. His discussions in Dublin revealed that some of
the fundamental rights guaranteed in the Irish Constitution were provi,!ig
veiy inconvenient, particularly the one relating to property. This came
under consideration in the Irish Supreme Court in connection with the Sinn
Fein Funds Act which related to certain trust moneys lying in deposit in
court. The moneys belonged to the Sinn Fein .Organization. While they were
in court, certain persons claimed them as honorary treasurers; and while the
claim was pending, the Irish Parliament passed an Act discharging the pending
action and vesting the moneys in a board of which the Chief Justice of
the Supreme Court was made the chairman. The Act gave the board
absolute discretion to pay the moneys to the members of various armed
forces and their dependents who might be in needy circumstances. The
Supreme Court held that the Act was unconstitutional in that it took away
the property which might have belonged to the plaintiffs and vested it in
the board ; however desirable might be the objects of the Act, it was said
to be in conflict with the rights of property guaranteed in the Constitution.
Certain other cases too had led to the feeling that the fundamental rights
had been expressed in too broad terms.

In the light of these discussions, B. N. Rau suggested that the following
new paragraph be added to clause 10 :

No law which may be made by the State in the discharge of its duty under
the first paragraph of this section and no law which may have been made
by the State in pursuance of the principles of policy now set forth in
Chapter III of this Part shall be void merely on the ground that it contravenes
the provisions of section 9\ or is inconsistent with the provisions of Chapter
II of this 'Part.

Explaining the object of this and consequential amendments, he observed :
The object of these amendments is to make it clear that in a conflict between
the rights conferred by Chapter 11, which are for the most part rights of
the individual, and the principles of policy set forth in Chapter IK, which
are Intended for the welfare of the State as a whole, the general welfare

^ Select Documents III, I(i), pp. 7-14.

^Clause 9 (article 13 of the Constitution) dealt with the mviolabiiity of the
fundamental rights.

328

FRAMING OF INDIA’S CONSTITUTION

shouid^ prevail over the individual right. Otherwise it would be meaningless
to say, as clause 10 does say, that these principles of policy are fundamental
and that it is the duty of the State to give effect to them in its laws. In
. the Constitution of the United States of America there are no express
directive principles of State ‘policy, but the courts have developed what is
equivalent thereto, namely, the doctrine -of the “police power” which has
been defined as the power “to prescribe regulations to promote the health,
peace, morals, education, and the good order of the people, and to legislate
so as to Increase the industry of the State, develop its resources, and add
to its wealth and prosperity”. In the exercise of this power the State may
make laws for the general welfare which would otherwise be inconsistent
with the American Bill of Rights. The courts in India might have been
able to develop a similar doctrine but for the language of clause 9 of the
Draft Constitution. Hence the amendments proposedh
Meanwhile, the Drafting Committee was going ahead with its work. At
its meetings on October 30 and November 1, 1947, it decided to place all
the directive principles in a separate Part and to transfer clause 10, which
dealt with the fundamental nature of the principles, to this new Part. The
committee also made certain modifications in some of the clauses enunciating
the directives, but these did not involve any change of substance. With a
few changes of a drafting nature the various provisions recommended by
the Advisory Committee in its Supplementary Report were incorporated in
the Draft Constitution of February, 19481 The amendment suggested by
B. N. Rau to strengthen the constitutional pOiSition of the directive principles
does not seem to have been considered.

When the Draft Constitution was circulated for eliciting comments and
opinions, there was again criticism of the unenforceable character of the
directive principles and of the external source from which the idea of a
declaration of State policy was borrowed. There were also suggestions for
changes in the wording of the various directives or for additions to the list.
Thakurdas Bhargava and Govind Das proposed the insertion of a new article
urging the State to endeavour to organize agriculture and animal husbandry
on scientific lines and take steps to ban the slaughter of the cow. The
Drafting Committee itself proposed the addition of a new article
prescribing that the State should secure the separation of the judiciary from
the executive within three years from the commencement of the Constitution".

Dealing with the criticism that the Constitution was not the place for moral
precepts or sermons, B. N. Rau observed in an article published in the Hindu:
It will be remembered that under previous enactments relating to the

^Select Documents III, 2, pp. 222, 226-7.

III, 5 and 6, pp. 325, 330, 333, 334, 527-9.

^Comments and Suggestions on the Draft Constitution, Select Documents IV, l(i),
pp. 55-6. . •

DIRECTIVE PRINCIPLES OF STATE POLICY

329

Government of India, there used to be Instruments of Instructions from
the Sovereign to the Governor-General and the Governors and .these
Instruments used to contain injunctions which, though unenforceable in the
courts, served a useful purpose. For example, one of them specially charged
and required the .Governor “to take care that due ' pro vision shall be .made
for the advancement and social welfare of those classes who on account
of the smallness of their number or their lack of educational , or material,
advantages or from any other cause specially rely on our protection”. This
may be compared with the article in the draft of the new Constitution which
requires that the State shall promote with special care the educational and
economic interests of the weaker sections of the people. The former was
an instruction from the legal sovereign to the Governors appointed by him ;
the latter may be looked upon as a similar instruction from the ultimate
sovereign, namely, the people of India speaking through their representatives
in the Constituent Assembly, to the authorities to be set up by or under the
Constitutionh

Tile second criticism that the directive principles were borrowed from
other constitutions was also answered by B. N. Rau in an address delivered
to the Indian Council of World Affairs on August 10, 1949. He pointed out
how some of the ancient Indian Sastras contained references to injunctions
to kings similar to the directive principles of State policy.

Introducing the Draft Constitution in the Assembly on November 4, 1948.
Ambedkar said that though the directive principles had no legal force behind
them, he was not prepared to admit that they had no sort of binding force,
nor was he prepared to concede that they were "‘useless” simply because they
had no binding force in law. Proceeding he said:

The inclusion of such instructions in a constitution such as is proposed
in the Draft becomes justifiable for another reason. The Draft Constitution
as framed only provides a machinery for the government of the country.
It is not a contrivance to instal any particular party in power as has been
done in some countries. Who should be in power is left to be determined
by the people, as it must be, if the system is to satisfy the tests of democracy.
But whoever captures power will not be free to do what he likes with it.
In the exercise of it, he will have to respect these Instruments of Instructions
which are called Directive Principles. He cannot ignore them. He may
not have to answer for their breach in a court of law. But he will certainly
have to answer for them before the electorate at election time. What great
value these directive principles possess will be realized better when the forces
of right contrive to capture powers

The consideration of the draft articles commenced on November 19, 1948
and lasted five days. In the discussion of the title of Part IV “Directive

N. Rau, India* s Constitution in the Making, 2nd edn. p. 393.

A. Deb., Yoh Yll, pp. 41-2.

330

FRAMING OF INDIA’S CONSTITUTION

PrMcipies of State Policy” and of draft article 29 dealing with the nature
of the directives, a suggestion was made for the replacement of the, word
‘"D;irective” in the, title by the word “Fimdamental” on the ground that
though, the directives were nondusticiabla, they were nevertheless
fundamenta!; it was pointed out by H. V. Kamath that the Advisory
Committee had given them the, title “Fundamental Principles of Governance”
and the Chairman of the Advisory Committee, Vallabhbliai Patel, had
stated that though not cognizable in any court of law, they “should be
regarded as fundamental in the governance of the country”b.

The suggestion to replace the word “Directive” by “Fundamental” wtis
opposed by Ambedkar who said that the object that these principles be
ireated as fimdamentai was already achieved by the wording of article 29 ;
but it was necessary to retain the word “Directive” ii\ order to emphasize
that in. enacting this Fart of the Constitution the Constituent Assembly was
giving certain directives to the future legislatures and executives. If the word
“Directive” w^as omitted, the intention of the members of the Assembly
in enacting this Fart would fail in its purpose ; the directives were meant to
be the fundamental principles which should necessarily be made the basis of
all executive and legislative action that might be taken in future in the
governance of the country. The Assembly rejected the amendment and
adopted the title “Directive Principles of State Fclicy”l
Five amendments for the addition of new provisions wore adopted by
the Assembly. The first, moved by K. Santhanam, sought to add a new
article :

The State shall take steps to organize village panchayats and endow them
with such powers and authority as may be necessary to enable them to
function as units of self-government.

Others who spoke on the subject emphasized the need to establish such
institutions in the villages. Tlie amendment was accepted by Ambedkar
without any commenf. The Assembly also accepted the amendmenth
Tile second amendment, moved by T. A. Ramalingam Chettiar, proposed
the addition of a clause providing that “the State shall endeavour to promote
cottage industries on co-operative lines in rural areas”. The amendment
received support from several members. Ambedkar said that as there was

C. A. Deb,,. VoL VII, pp. 473-6.

Hbid„ p. 476.

’^Earlier, while introducing the Draft Constitution and referring to criticisms
thereof, Ambedkar had expressed himself strongly against the system of village
panchayats. Characterizing the village as “a sink of localism” and “a den of
narrow-mindedness”, he had observed: “I am glad that the Draft Constitution has
discarded the village and adopted the individual as its unit.” The expression of
such a view by Ambedkar had evoked strong resentment and protests from a number
of members. €. A, Deb., Vol. VII, pp. 38-9.

nbid,, pp. 520-7.

DIRECTIVE PRINCIPLES OF STATE POLICY

331

a: considerable amount of feeling that the directive principles should iiiake
some reference to cottage industries, he -was prepared to accept .the amendiiieiit
with certain, changes and add it to the article which dealt with the State’s
obligation to secure to all workers a living wage, good conditions of work,
a decent standard of life, etc. The changes he suggested included, the use
of the phrase **on an individual or co-operative basis” to satisfy two schools
of thought in the Assembly, one of which believed in . the ■ organization of
cottage industries solely on a co-operative basis, and the other which held
that there should not be any such limitation. The Assembly adopted the
amendment in the form suggested by Ambedkari.

The third amendment, relating to the prohibition of intoxicating drinks and
injurious drugs, was moved by Mahavir Tyagi and modified by Shibban' Lai
Saxena to make their use for medicinal purposes permissible. This was also
accepted by Ambedkar as it had wide support. The amendment was also
adopted by the Assembly^

The fourth amendment, moved by Thakurdas Bhargava, sought the addition
of the following article :

38-A. The State shall endeavour to organize agriculture and animal
husbandry on modern and scientific lines and shall in particular take steps
for preserving and improving the breeds of cattle and prohibit the slaughter
of cows and other useful cattle, specially milch and draught cattle and their
young stock.

This w'as also adopted by the Assembly v/ithout much controversy I

The fifth amendment, which emanated from the Drafting Committee and
was moved by Ambedkar, sought the addition of a new article enjoining
the State to take steps to secure the separation of the judiciary from the
executive within a period of three years from the commencement of the
Constitution. During the debate xAmbedkar agreed to drop the three-year
time-limit on the suggestion of T. T. Krishnamachari who stated that no
useful purpose could be served by imposing a three-year limit when the
provisions of the article themselves were not mandatory'. The article, as
modified, was finally adopted by the Assembly and added to the
Constitution®.

Tliere were a number of other amendments designed to modify one or
the other- of the directives as formulated in the Draft Constitution. Damodar
Swamp Seth proposed the imposition on the State of an obligation to promote

A. Deb., VoL VII, pp. 532, 535-6.

mid.:pp. 498-9, 555-6 and 567-8.

;■ ■ „TI^/U,'pp.,, 568-81.', ■

A! though Krishnamacharrs suggestion had a limited object, his lack of enthu-
siasm for the directive principles was apparent from his description of Part IV as
“a veritable dustbin of sentiment”, “sufficiently resilient as to permit any individual
of this House to ride his hobby-horse into it.” Ibid., pp. 582-3.

^Ibid., pp. 582-93. '.'

332

FRAMING OF INDIA’S CONSTITUTION

the welfare of the people by establishing and maintaining a demO'cratic
socialist order. Again, in the article which imposed a duty on the State to
secure the distribution of the ownership and control of the material resources
of the community so as to subserve best the common .good, K. T. Shah
sought the insertion of a clause vesting the ownership, control and
management of all natural resources of the country in the Government'.

Ambedkar, opposing these suggestions, said that the main object of
incorporating the directive principles in the Constitution was to . lay down
that future governments should strive for the achievement of the ideal of
economic democracy, but not to prescribe any particular or rigid method or
way, whether individualist, socialist, or communist, to achieve ill

The article enjoining the State to secure for the citizens a uniform civil
code throughout the tenitory of India evoked considerable controversy. A
number of Muslim members — ^Mohamad Ismail, Mahboob Ali Baig,
B. Pocket Sahib and Hussain Imam — opposed it on the ground that its
enforcement would impinge on the right of a group or community to
follow its own personal law. The personal law of a community, they
Contended, was part of its religion and way of life; and in any case, so
far as the Muslims were concerned, their laws of succession, inheritance,
marriage and divorce were completely dependent upon their religion.
Accordingly, the imposition of a uniform civil code would not only conflict
with the freedom of religious practice guaranteed by draft article 19', but
would also amount to tyranny over those who wanted to follow their own
personal laws.

Replying to these criticisms, Munshi said that v/e were '‘in a stage at
which we must unify and consolidate the nation by every means without
interfering with religious practices”. He wanted to divorce religion from
personal law, from what might be called social relations or from the rights
of parties as regards inheritance or succession. Alladi Krishnaswami Ayyar
said that a civil code ran into every department of civil relations, to the
law of succession, to the law of marriage and similar matters; there could
be no objection to the general statement that the State shall endeavour to
secure a uniform civil code. Arnbedkar also spoke at some length on this
matter. He pointed out :

We have in this country a uniform code of laws covering almost every
aspect of human relationship. We have a uniform and complete criminal
code. . . We have the law of transfer of property which deals with property
relations and which is operative throughout the country, , . I can cite
innumerable enactments which would prove that this country has practically
a civil code, uniform in its content and applicable to the whole of the
country.

A. Deb,, Vol. VII, pp. 486-7, 508.

“Ibid,, pp. 494-5.

’''Corresponding to article 25 of the Constitution.

DIRECTIVE PRINCIPLES OF STATE POLICY

333

Dealing with the apprehension that a uniform civil code might be forcibly
imposed on unwilling minorities or groups, he said that there was iiotliing
In the draft article to warrant the view that the State would enforce a uniform
code upon all citizens merely because they were citizens, and it was possible
that a future Parliament might make a provision that, to begin with, the
code .would apply only to those who declared that they were prepared to
be bomd by it\

Ail the amendments were rejected by the Assembly which accepted some
changes of a drafting and verbal nature. The sixteen directive principles
of State policy assumed the form in which they appear as: articles 36 to 51
cl the Constitution. ,■

VoL' VII, pp. 540-52.'

THE PRESIDENT AND THE UNION EXECUTIVE

INTRODUCTORY

One of the most important questions to engage the attention of the framers
of the Constitution related to the nature of the executive and its relatioxi
to the legislature. Anibedkar observed in introducing the Constitution :

A Student of constitutional law, if a copy of a constitution is placed in his
hands, is sure to ask two questions. Firstly, what is the form of government
that is envisaged in the constitution; and secondly, what is the form of the
constitution ? For these are the two crucial matters which every constitution
has to deal withh

The decision/ of the Constituent Assembly on the form of government in
India was, perhaps inevitably, considerably influenced by the political
background in India and the practice and traditions evolved during the British
rule.

Tlie Central Government in India, before the transfer of power, was carried
on by the Governor-General in Council,, consisting of the Govciiior-General
and members of his Executive Council. All of them were appointed by the
Crown in the United Kingdom and it was laid down that the Governor-
General and the Governor-General in Council ‘‘shall be under the general
control of, and comply with such particular directions, if any, as may from
time to time be given by, the Secretary of State"’". There was after the first
world war a Central Legislature, and its two chambers consisted, in addition
to the elected members, of a number of officials and nominated non-officials.
In no sense was the Governor-General in Council answerable to it, or
dependent on its vote.

in the United Kingdom, constitutional usage and practice had, as is w^ell
known, so far supplemented constitutional law that by the middle of the
nineteenth century the powers possessed in legal theory by the Sovereign
were almost entirely exercised on the advice of Ministers possessing for the
time being the confidence of Parliamentl In the instalments of
constitutional reform bestowed on British India by the Parliamentary Acts
of 1919 and 1935, the intention was that in respect of those functions which
were entrusted to Ministers acting in responsibility to the Legislatures, the

A. Deb., VoL VII, pp. 31-2.

^Government of India Act, 1935, Section 314.

^ Joint Select Committee on Indian Constitutional Reform:" Report (1934), para 69.
334

THE PRESIDENT AND THE EXECUTIVE

335

practices and conventions followed in the United Kingdom slioiikl witii
impo-rtant reservations, be adopted in 'India. The provisions of the
Government of India Act, 1935, relating to the exercise of executive power
v/ere cautiously devised, because the scheme of the Act was to provide for
a complicated mecliaiiism of administrative and legislative controls, witli
the ultimate authority vesting in the British Parliament. The Act formally
vested the executive authority of the Centre and the Provinces ' in the
Governor-General and the Governors respectively. It then committed certain
matters to the discretion of the Governor-General and the Governors; such,
for instance, as their power of veto over legislation, the regulation of matters
relating to defence, external affairs and the administration of tribal areas
(in the case of the Governor-General) and excluded areas (in the case ' of
the Governors).

The. matters in which the Governor-General and Governors' acted in their
discretion were outside the area of ministerial responsibility and the
Governor-General and Governors -dealt with them personally, with the
assistance of civil servants who were also appointed by them. The Ministers
w^ere thus totally excluded from any voice in the administration of these
discretionary subjects. In addition, the Act contained a declaration that even
in the area of adiiiiaistratioa entrusted to Ministers certain special
responsibilities were to vest in the Governor-General and the Governors.
These special responsibilities could be invoked for specified purposes, among
which were the prevention of a grave menace to peace and tranquillity, the
protection of the legitimate interests of the minorities and the services, the
safeguarding of British commercial interests, etc. Where in their judgment
any special responsibility was attracted the Governor-General and Governors
were required to exercise their "‘individual judgment’' as to the action to be
taken and for this purpose they could on occasions over-rule their Ministers.
In the administration of functions committed to them in their discretion and
in The exercise of their functions in their individual judgment the Governors
w'ere accountable to the Governor-General and the latter to the Secretary
of Slate for India and through him to the British Parliament.

In regard to functions other than those w’'here they were required to act
in their discretion or exercise their individual judgment, the Governors were
expected generally to foster' the conventions and practices of parliamentary
government as followed in the United Kingdom ; and accordingly these
functions were to be in charge of Ministers acting in responsibility to theii:
respective Legislatures.

The manner in which the conventions of parliamentary democracy were
formulated' in the new Constitution also deserves a passing refereoce. . It' was
in 1921 that to a limited extent power was first conferred on Ministers acting
in responsibility to elected Legislatures; and, this power was restricte^^
certain subjects in the-,' Provinces. The Government, of India .Act, •1919,

under which this was effected, authorized provision being made by

336

FRAMING - OF'' INDIA’S CONSTITUTION

rules made by the Governor-General in Council

for the transfer from among the provincial subjects of subjects (in this Act
referred to, as “transferred subjects”) to the administration of the Governor
; acting with Ministers appointed .under this Act, and for the allocation of
revenues or moneys for the purpose of such administration.

, Within this restricted field ' of the transferred subjects, and . within the.
resources comprised by the revenues allocated for their administration, the
Act laid down the principle that the Governor should be guided by the advice
of his Ministers, unless “he sees sufficient cause to dissent from their opinion,
in which case he may require action to be taken otherwise than in accordance
with that advice”h

The Government of India Act, 1935,. carried the process of transfer of
power a step further, and in the Provinces responsibility was for the most
part to be entrusted to Ministers who had also power to raise revenues. Under
the scheme of federation contemplated in that Act there was to be a certain
measure of transfer of power to Ministers at the Centre as well. That Act
did not contain any provision on the lines of the earlier Act of 1919 directing
the Governor to be guided by the advice of his Ministers. It merely laid
down that the Governor-General and the Governors would each have a
Council of Ministers to aid and advise him in the exercise of his functions,
except in so far as he was required to act in his discretion. The relations
of the Governor-General and the Governors with their Ministers were not
regulated by the Act but were left to be governed by an Instrument of
Instructions issued by the Crownl It was considered definitely undesirable
to define these relations in the statute or to impose an obligation on the
Governor-General or Governors to be guided by the advice of their Ministers,
since such a course might convert a constitutional convention into a rule
of law and thus bring it within the cognizance of the courts'.

Accordingly, the Government of India Act, 1935, contained specific
provisions both in the case of the Federal and the Provincial Governments
that the question whether any, and if so, what advice was tendered by
Ministers should not be inquired into in any court'. The Instrument of
Instructions issued to the Governors directed them, in making appointments
to the Council of Ministers, to use their best endeavours to select Ministers
in consultation with the person (obviously intended to be the Prime Minister
or the Chief Minister) who in their judgment was likely to command a
stable majority in the Legislature : the Ministers so appointed were to be
persons who would be in a position collectively to command the confidence
of the Legislature. The Governors were also enjoined constantly to bear

^Government of India Act, (1924 reprint) sections 45-A and 52.

'Government of India Act, 1935, Sections 9, 50.

^ Joint Select Committee on Indian Constitutional Reform : Report (1934)y para 69.
‘^Sections 10(4) and 51(4). :

THE' PRESIDENT AND THE EXECUTIVE

337

in mind the need for fostering a sense of joint responsibility among their
Ministers. In all matters within the scope of the executive authority of the
Provinces, save in relation to functions in which they were , required to act
in, their discretion, the Governors were to be guided in the exercise of their
functions by the advice of their Ministers, unless in their opinion so to be
guided would be inconsistent with the fulfilment of any of the special
responsibilities which were committed to them, or with the proper discharge
of any of the functions which they w-^ere required to exercise in their
individual judgment ; in such circumstances they could invoke their own
authority and over-rule the Ministers. But, cautioned the ' Instrument, the
Governor was to be circumspect so to exercise his powers as not to enable
his Ministers to rely on his special responsibilities . in order to relieve
themselves of responsibilities which were properly their ownh

Similar instructions were drafted for the Governor-General, to be issued on
the coming into force of the Federation envisaged in the Act; but there was
no occasion to issue them, since the Federation itself never came into being.

India had thus become increasingly familiar with the traditions of
parliamentary government ever since her association with Britain began.
Munshi expressed this clearly when he said in the Constituent Assembly :
We must not forget a very important fact that during the last one hundred
years Indian public life has largely drawn upon the traditions of the British
constitutional law. Most of us, and during the last several generations before
us, public men in India, have looked up to the British model as the best. For
the last thirty or forty years, some kind of responsibility has been introduced
in the governance of this country. Our constitutional traditions have become
Parliamentary and we have now all our Provinces functioning more or
less on the -British model. As a matter of fact, today, the Dominion
Government of India is functioning as a full-fledged Parliamentary'
Government.

In the light of this background it is not surprising that from the earliest
stages of the discussions on the principles of the new Constitution opinion
appears to have been overwhelmingly in favour of adopting for India an
executive responsible to the Legislature in accordance with the British
tradition.

The replies received to the questionnaire^ issued by the Constitutional
Adviser clearly indicated this trend. In the memorandum on the principles
of the Union Constitution submitted for the consideration of the Union
Constitution Committee by Alladi Krishnaswami Ayyar and N. Gopalaswami
Ayyangar, it was specifically suggested that the executive power of the
Central Government would, subject to the provisions of the Constitution, be

^Gwyer and Appadorai, Speeches and Documents on the 'Indian Constitution^
Vol. I, p. 379.

"C. A. Deb,, Vol. VII, pp. 984-5.

^Select Documents 11, 15(iii), pp, 528-9,

23 ' ■

338

FMMING OF INDIA’S CONSTITUllON

exercised by, or on the authority of, a Council of Ministers, to be called the
Cabinet, which would be responsible to the lower chamber of the Central
Legislature to be elected by adult franchise'.

It is, however, worth noting that the conferment of certain special powers
on the President was also contemplated at this stage. In the. memorandum
of May 30, 1947, prepared by the Constitutional Adviser for the use of the
Union Constitution Committee, the principal provision embodied in this
respect stated that there should be a Council of Ministers to aid and advise
the President in the exercise of his functions, but it went on to add, ‘"except
in so far as he is required by this Constitution to act in his discretion”. In
a note on this clause it was stated :

Although under responsible government the Head of the State acts for the
most part on the advice of Ministers responsible to the Legislature,
nevertheless there are certain matters in which he is entitled to exercise his
own discretion : e.g., (in certain events) in the choice of a Prime Minister
and in the dissolution of Parliament. In India such matters as the
appointment of judges, the protection of minorities and the suppression of
widespread disorder may properly be added to the list. Of course it may not
be always possible for the President to use his “discretionary” powers. Thus
a Ministry may threaten to resign if in the exercise of “discretionary” power,
he overrules them; in that case, the President can do so only if he has the
support of the Legislature and can get an alternative Ministry enjoying its
confidence. Failing this, he can dissolve the Legislature and appeal to the
electorate in an extreme case. Thus the “discretionary” powers will at
least give the President a chance of appealing to the Legislature, and in
the last resort, to the people.

The following special responsibilities were proposed to be conferred on
the President in the memorandum :

(a) the prevention of a grave menace to the peace or tranquillity of
the Union or any part thereof ;

(b) the safeguarding of the financial stability and credit of the Union
Government ;

These were mentioned as matters of national importance in the decisions
on which party bias was to be avoided. The President was authorized in these
matters to act in his discretion and, to advise him, the memorandum proposed
the establishment of a Council of State with the following composition :

(i) Ex-officio members : The Prime Minister; the Deputy Prime Minister,
if any ; the Chief Justice of the Supreme Court ; the presiding officers
of the two Houses of the Legislature; and the Advocate-General;

(ii) ' such of the former Presidents, Prime Ministers and Chief Justices
as were willing and able to act ;

'^Select Documents II, 15(vi), p. 546.

THE PRESIDENT AND THE EXECUTIVE

339

(iii) such other persons, not more than seven, as might be appointed by
the President to be members (members of the Council so appointed
were to hold office only for the duration of the tenure of the President
who appointed them).

The provisions regarding the Council of State were adapted from the
Irish Constitution. This Council was conceived as a sort of Privy Council
whose advice would be available to the President whenever he chose to
obtain it in all matters of national importance in which he was required
to act in his discretion. B. N. Rau’s note said :

An institution of this kind may be useful in India in such matters as the
appointment of judges, the protection of minorities and the superintendence,
direction and control of elections. It may be pointed out that the impartial
delimitation of constituencies and the readjustment of representation after
every census are regarded as so important that in South Africa it is entrusted
to a commission consisting of three judges of the Supreme Court. In Canada
the members of the Opposition are associated with the members of the
Government in this matter in order to prevent gerrymandering. Clearly
therefore an agency free from party bias is required for this purpose.
Dr. Ambedkar was very particular that the superintendence, direction and
control of all elections should be vested in a non-party commission\

This matter was considered by the Union Constitution Committee at its
meetings on June 8 and 9, 19471 The committee decided unreservedly in
favour of the parliamentary type of government in which the President would
have no special powers vested personally in him but would exercise all his
functions, including the dissolution of the lower chamber of Parliament, only
on the advice of his Ministers. With the decision that the President should
hot have any special responsibilities on the lines proposed in the memorandum
prepared by the Constitutional Adviser, the proposal for the constitution
of a Council of State was automatically abandoned.

When the Report of the Union Constitution Committee came under the
consideration of the Assembly on July 28, 1947, there was general agreement
with its proposal for the adoption of the parliamentary form of executive®.
There were, however, some dissentients, particularly among some of the
Muslim members, who were in favour of a composite Cabinet including the
important communities. Haji Abdul Sathar Haji Issaq Sait proposed an
amendment providing that the Council of Ministers would be elect^ by the
Legislature under the system of proportional representation by means of the
single transferable vote. Kazi Syed Karimuddin moved an amendment which
proposed a “non-parliamentary” executive government: the Prime Minister

^Memorandum on the Union Constitution prepared by the Constitutional Adviser,
May 1947. Select Documents 11, 15(ii), pp. 476-9.

^Minutes, II, 16, pp. 555, 556,

YoLTV, pp. 907 ff, ' '

340

FRAMING, OF INDIA’S CONSTITUTION

was to be' elected’ 'by the lower chamber of the Union' Legislature by
proportional representation by means of the single transferable vote, and the
other Ministers by the single non-transferable vote. The Ministry was to
hold office for a fixed period which would be the same as the tenure of
the Legislature, though individual Ministers could be removed by
impeachment for corruption or treason. Karimuddin’s argument was that
the parliamentary system as it was functioning in India created favouritism
and nepotism. The disturbed state of the country at that time, with arson;
killing and looting in some parts of India, was in his view due to “a weak
executive manned by Ministers who depended for their existence on the
support of those people who are interested in communal tension”. Mahboob
All Baig stressed what he considered to be the advantages of election by
proportional representation : a Cabinet elected on this basis would be
democratic and represent ail sections of the people, and stability would be
conferred on such a Cabinet by providing for their continuance in office for
a period of four or five years.

Another proposal was made by Hussain Imam who suggested that the
system adopted in the United States of America, whereby the President had
the discretion to nominate his own Ministers, was ‘"more democratic and
based on better and sounder principles” than the British model. He argued
that the control of the legislature over the executive was as effective in the
United States as in Britain.

Jawaharlal Nehru, who as the Chairman presented the Report of the
Union Constitution Committee, replied to these arguments. He strongly
opposed the election of the Ministry and said that he could think of nothing
more conducive to the creation of a feeble ministry and a feeble government
than election by proportional representation. Nehru was equally opposed
to a fixed tenure for Ministers. He said :

That raises a very fundamental issue of what form you are going to
give to your Constitution, the ministerial parliamentary type or the
American type. So far we have been proceeding with the building up
of the Constitution in the ministerial sense and. . .we cannot go back
upon" it. '

The Assembly accepted the principle of a parliamentary executive,
collectively responsible to the Lower House of the Legislaturel

Tlie provisions-- included in the Draft Constitution prepared by the Drafting
Committee were accordingly based on this conceptl

,, In introducing the Draft Constitution in- the Assembly on November 4,
1948, Ambedkar, ■ the Chairman of the Drafting Committee, made an
exhaustive and authoritative statement of the position of the President

Dek, VoL IV, p, 921.

®Draft Constitution prepared by the Drafting Committee, Feb. 21, 1948; articles
61 and 62, Select Documents III, 6, p. 537,

THE PRESIDENT AND THE EXECUTIVE

341

vis-a-vis liis Cmincil of Ministers and the general character of the executive
that the Draft Constitution provided :

In the Draft Constitution there is .placed at the head of the, Indian Union
a functionary who is called the President of the Union. The, title of this
furictionary reminds one of the President of the United States. But beyo,iid
identity of names there is nothing in common between the form of
■government prevalent In America and the form of government proposed
under the Draft Constitution. The American form of government Is -called
the Presidential system of government. What the Draft -.Constitution
proposes is the Parliamentary system. The two- are fundamentally different.
-Under the Presidential system of America, the President is the chief head
of the executive. The administration is vested in him., -Under the. Draft
Constitution the President occupies the same position as the King under
the English Constitution. He is the head of the State- but not of the
executive. He represents the nation but does not rule the nation; Pie
is the symbol of the nation. His place in the administration is that of
a ceremonial device on a seal by which the nation’s decisions are made
known. Under the American Constitution the President has under him
Secretaries in charge of different Departments. In like manner the President
of the Indian Union will have under him Ministers in charge of different
departments of administration. Here again there is a fundamental difference
between the two. The President of the United States is not bound to accept
any advice tendered to him by any of his Secretaries. The President of
the Indian Union will be generally bound by the advice of his Ministers,
He can do nothing contrary to their advice nor can he do anything without
their advice. The President of the United States can dismiss any Secretary
at any time. The President of the Indian Union has no power to do so
so long as his Ministers command a majority in Parliament.

The Presidential system of America is based upon the separation of the
executive and the iegisiatiire, so that the President and his Secretaries
cannot be members of the Congress. The Draft Constitution does not
recognize this doctrine. The Ministers under the Indian Union are members
of Parliament. Only members of .Parliament can become ;Ministers.
Ministers have the same rights as other members of Parliament, namely,
that they can sit in Parliament, take part in debates and vote in its
proceedings. Both systems of government are of course democratic and
the choice between the two is not very easy. A democratic executive must
satisfy two ' conditions : (1) it must be a stable executive, and (2) . it must
. be . a responsible executive. Unfortunately it has not been , possible so^ -far.; ,
: to devise , a system which can ensure both in . equal degree. You can' have'
a system which can give you more stability but less responsibility or you
can have a system which gives you more responsibility but less stability.
The American; and the Swiss systems .give mo,re stability but less responsi-
bility. The British system on the other hand gives you more responsibility

342

FRAMING OF INDIA’S CONSTITUTION

but less stability. The reason for this is obvious. The American executive
is a noii-Pariiamentary executive which means that it is not dependent for
its existence upon a majority in the Congress, while the British system is
a Parliamentary executive which means that it is dependent upon a majority
in Parliament Being a non-Parliamentary executive the Congress of the
United States cannot dismiss the executive. A Parliamentary Government
must resign the moment it loses the confidence of a majority of the members
of Parliament.

Looking at it from the point of view of responsibility, a non-Parliamentary
executive, being independent of Parliament, tends to be less responsible
to the legislature, while a Parliamentary executive, being more dependent
upon a majority in Parliament, becomes more responsible. The Parliamentary
system differs from a non-Parliamentary system inasmuch as the former
is more responsible than the latter but they also differ as to the time and
agency for assessment of their responsibility. Under the non-Parliamentary
system, such as the one that exists in the United States of America, the
assessment of the responsibility of the executive is periodic. It takes place
once in two years. It is done by the electorate. In England, where the
Parliamentary system prevails, the assessment of responsibility of the
executive is both daily and periodic. The daily assessment is done by
members of Parliament, through questions, resolutions, no-confidence
motions, adjournment motions and debates on Addresses. Periodic
assessment is done by the electorate at the time of the election which may
take place every five years or earlier. The daily assessment of responsibility
which is not available under the American system is, it is felt, far more
effective than the periodic assessment and far more necessary in a country
like India, llie Draft Constitution in recommending the Parliamentary
system of executive has preferred more responsibility to more stability^
Though general opinion was in favour of this executive set-up, some
dissentient voices continued to be heard. Karimuddin again stressed the point
raised by him earlier, that a Parliamentary executive as contemplated in
the Draft Constitution was bound to be weak and vacillating, as the Ministers
had to depend on ‘‘communally-minded supporters”; he thought that the
easiest way to afford protection to the minorities was fcr the representatives
of the different minorities in the Cabinet to be elected by the minority
community by the single transferable vote ; and for the representatives of
the majority community to be elected by the whole Housed
There were other critics of the proposal of a Parliamentary executive.
Ramnarayan Singh, speaking somewhat bitterly from experience, said that
people “form parties and manipulate votes and get a majority in the

1C A. Deb,, VoL VII, pp. 32-3.

^Ibid„ p. 243. He was adopting this from Ambedkar’s memorandum on States
and Minorities. Select Documents II, 4(ii)(d), p. 91.

THE PRESIDENT AND THE EXECUTIVE

343 ,

legislatures and form the government”. He was therefore in favour of all-
powerful Presidents “who will be responsible for the work done and who will
choose their ministers or secretaries”^ Supporting this view, Shibban Lai
Saxena said that the stability of the Government was the first need of the
nation. He referred to the fissiparous tendencies already at work in the
country — the demand for linguistic provinces and quarrels about a division
of powers — and pleaded strongly for a President elected by adult suffrage to
be in charge of the nation with the right tO' choose his. executive^. But the
overwhelming weight cf opinion was .in favour of the Drafting Committee's
proposal and accordingly in the Constitution a Parliamentary executive of
the British type was adopted.

It was against the background of the decision that the President was to
be a constitutional head, and that administration would be in the charge
of Ms Ministry, that the various provisions relating to his office were framed.
These provisions covered the procedure for his election, term of his office,
eligibility for re-election, qualifications, the conditions of his office and
other connected matters. The Union executive also comprised the
Vice-President and the Council of Ministers and the Constitution provided
for these offices and laid dowm the extent and scope of the executive
authority of the Union.

Election of the President {Articles 54 and 55)

The Constitutional Adviser included a provision in his memorandum
prepared for the Union Constitution Committee® that the head of the Union
would be the President, elected by the two Houses of the Union Parliament
by secret ballot, according to the system of proportional representation by
means of the single transferable vote. In an explanatory note, B. N. Ran
commented that since the President, under the proposed Constitution, wm
intended merely to be a constitutional head, it was unnecessary to provide
for his election by the direct vote of the people. Such an elaborate process
might have been appropriate for an all-powerful head like the President of
the United States of America. For a responsible head, he suggested that the
Swiss or French plan of election by the two Houses of the Legislature would
be sufficient. This view was also put forward separately in the memorandum
on the principles of the Union Constitution drawn up by N. Gopalaswami
Ayyangar and Alladi Krishnaswami Ayyar\ K. M. Munshi was, however,
of the view that the President should be elected by universal adult franchise
from among those persons who were nominated by the Assemblies of not
less than Tour States.

A. Dek. VoL VII, pp, 249-50,

^IbiA, p. 2S4,

^Select Documents 11, ISiiiX p, 474.
nbid,, !!, 15(yiX pp. 541-2.

344

FRAMING OF INDIANS CONSTITUTION

^ At the meeting of the Union Constitution Committee held on June 8,
1947^5 a fresh suggestion was put forward by N. Gopalaswami Ayyangar
that there should be a broader basis for the election of the President. The
background to this proposal was apparently the general desire that, as the
head of the Union, the President should be the elected representative of
the whole nation, and that the Provinces and Indian States as well as the
Centre should exercise a voice in his election. Gopalaswami Ayyangar
suggested an electoral college being set up consisting of the members of the
lower chamber of the Federal Legislature as well as a fixed percentage of
the total population of the Provinces and Indian States. This number was
to be distributed among the Provinces and Indian States in proportion to
their population and the members of the college were to be elected by the
members of the respective Legislatures of the units— by the Lower House in
those units where there were two chambers. A sub-committee consisting of
Ambedkar, Gopalaswami Ayyangar and Munshi examined^ this proposal and
recommended that the electoral college for the election of the President
should consist of the members of the Legislatures of the units, or where a
Legislature was bicameral, the members of the Lower House. In order to
secure uniformity in the scale of representation of the units, the votes of
the members of the several Legislatures would be weighted in proportion to
the population.

The Union Constitution Committee accepted this recommendation, with
the addition that the members of both Houses of the Federal Legislature
should also be included in the electoral college for the office of the President.
The committee’s recommendations about the President read :

1. Head of the Federation : (1) The Head of the Federation shall be the
President (Rashtrapati) to be elected as provided below :

(2) The election shall be by an electoral college consisting of —

(a) the members of both Houses of Parliament of the Federation, and

(b) the members of the Legislatures of all the units, or, where a

Legislature is bicameral, the members of the Lower House thereof.

In order to secure uniformity in the scale of representation of the units,
the votes of the unit Legislatures shall be weighted in proportion to the
population of the units concerned.

Explanation : A ‘unit’ means a Province or Indian State which returns in
its own individual right members to the Federal Parliament. In Indian
States which are grouped together for the purpose of returning representatives
to the Council of States, a ‘unit’ means the group so formed and the
Legislature of the unit means the Legislatures of all the States in that
. 'group. ■

(3) The election of the President shall be by secret ballot and on the
^Select Documents 11, 16, p, 554.

=Sub-Committee Minutes, June 10, 1947, Select Documents li, 17(i), pp. 571~2.

THE PRESIDENT AND THE EXECUTIVE

345

system of proportioiiai representation by means of the single transferable
vote. ■

(4) Subject to the above provisions, elections for the office of President
shall be regulated by Act of the Federal Parliament.

{Note : The provision , about weighting of the votes according to . the
"population of the units is necessary to prevent the swamping of the voles
of a large unit by those of a much smaller unit which may happen to have
a relatively large Legislature. The mode of weighting may be illustrated
thus. In a Legislature where each legislator represents 100,000 of the
population, his vote shall count as equivalent to^ 100, that is 1 for each
1000 of the population ; and where the Legislature is such that the legislator
represents 10,000 of the population, his vote shall count as equivalent to
10 on, the same scale)h ,

Moving the relevant clause of the ■■ committee’s report in the Constituent
Assembly on July 21, 1947, Jawaharlal Nehru made the following
observations :

One tiling we have to decide at the very beginning is what should be .the
kind of governmental structure, whether it is one system where there is
ministerial responsibility or whether it is the Presidential system as prevails
in the United States of America; many members possibly at first sight niiglit
object to this indirect election and may prefer an election by adult suffrage.
We have given anxious thought to this matter and we came , to' the very
definite conclusion that it would not be desirable, first because : we want
to emphasize the ministerial character of the government, that power really
resided in the Ministry and in the Legislature and not in the President
as such. At the same time we did not want to make the President just a
mere figurehead like the French President. We did not give him any real
power but we have made his position one of great authority and dignity. You
will notice from this Draft Constitution that he is also to be Commander-
in-Chief of the Defence Forces just ■ as the A.merican President is.
Now, therefore, if we had an election by adult franchise and yet did not give
him any real powers, it might become slightly anomalous and there might
be just extraordinary expense of time and energy and money without any
adequate result. Personally, I am entirely agreeable to the democratic
procedure ; but' there is such a thing as too much of a, democratic procedure
and I greatly fear that if we have a wide scale wasting of . time, we
might have no time left for doing anything else except preparing for the
,, elections and having elec^ions^

Dealing with the suggestion that if the President was merely to be a
constitutional head, he could be elected, by the Central Legislature, , Nehru

^Minutes, June 11, 1947: and Report, July 4, 1947, Select Documents 11, 16 and
18, pp. 558, 578-9.

VoL IV, p. 734.

346

FRAMING OF INDIA’S CONSTITUTION

said that there was the danger that such a course might be placing the thing
on too narrow a basis. The Central Legislature would probably be dominated
by one party or group which would form the Ministry and if that group
elected the President as well, they would choose their own nominee : he
would be ''even more a dummy than otherwise”. The committee therefore
adopted a middle course and the members of all the Legislatures from
all over India would become voters. Nehru commended the proposal as the
right method to choose a "good man who will have authority and dignity
in India and abroad’’^

Some amendments were suggested to these proposals. Shibban Lai
Saxena moved an amendment suggesting election by adult franchise^ and
Syamanandan Sahaya desired that the electorate should also include members
of the Upper Houses in 'Provinces which had two chambers". There was
also a proposal from T. Channiah that the election should' be held by
rotation by North India and South. India; and one from D. H. Chandra-
sekharayya that the President should alternatively be elected from the Indian
States and the rest of India^ Eventually, the proposals of the Union
Constitution Committee were accepted by the Assembly, after Jawaharlal
Nehru had agreed to two clarificatory suggestions. On a proposal by
K. C. Reddy, he agreed that only the elected members of Parliament and
the State Legislatures would constitute the electorate : and on a suggestion
by Ajit Prasad Jain, he agreed to give consideration to the question of giving
weightage to members of the Federal Legislature also®.

In the Draft Constitution of October 1947, the Constitutional Adviser
made two alternative suggestions for the purpose of giving weightage to the
members of the unit Legislatures. The first suggestion made by him was
that the population of each unit should be divided by the number of elected
members of the Legislature of the unit (the Lower House in the case of a
State with a bicameral Legislature) ; and each member would have as many
votes as there were multiples of one thousand in the quotient so obtained
(remainders of not less than 500 would be treated as one and remainders
less than 500 ignored)"; the average number of votes assigned to members
of the State Legislatures {Le, the total number of votes assigned^ to members
of all the unit Legislatures divided by the total number of such members)
was to be the number of votes to be assigned to a member of the Federal
Parliament, a fraction of one-half and less being ignored and a fraction of
more than half being counted as one.

Alternatively, the Constitutional Adviser proposed that the number of the
elected members, which a State Legislature would have on the scale of one

7C. A. Deb,. Vo!. IV, p, 735.

nbid,. p. 822.

pp. 821 and 828.

^Ibid,. pp. 845-6.

THE PRESIDENT AND THE EXECUTIVE

347

insmber for every 100,000 of the population of the State, was to be first
calculated, disregarding any fraction in such calculation. If the total
number of elected members exceeded the number so calculated, the excess
would be excluded by lot and only the remaining members would be
members of the electoral college. If this procedure was followed there
would be no need to give weightageh

The Drafting Committee accepted as suitable the first of these suggestions.
Accordingly article 41 of the Draft Constitution provided that '"there shall
be a President of India”; article 43 prescribed that he would be elected by
an electoral college consisting of the members of both Houses of Parliament
and the elected members of the Legislatures of the States; and article 44
embodied the formula for weightage for securing that there would be
uniformity in the scale of representation of the different States at the election
of the President^

When draft article 41 was discussed in the Assembly on December 10,
1948, K. T. Shah proposed an amendment suggesting that ‘"the Chief
Executive and Head of the State in the Union of India shall be called the
President of India”. On this point Ambedkar explained that the adoption
of the designation of Chief Executive would mean the adoption of the
Presidential form of executive and not the Parliamentary form of executive
as contained in the Draft Constitution. It would not therefore be possible
even to consider Shah’s amendment except as a consequence of the decision
of the Assembly on the provisions (which would be subsequently considered)
on the articles about the Council of Ministers. The amendment was
negatived'^

H. V. Kamath objected to the absence of the Hindi equivalent
“Rashtrapati”. Ambedkar replied that it would be for the committee
entrusted vdth the translation of the Constitution to adopt a suitable Hindi
equivalenf.

When the method of election of the President was discussed, several
amendments were moved. An amendment was moved by Ambedkar on
behalf of the Drafting Committee to give greater weightage to the members
of Parliament than was proposed in the Draft Constitution, according to
which a member of Parliament would have

such number of votes as may be obtained by dividing the total number
of votes assigned to members of the Legislatures of States. . . by the total
number of such members, fractions exceeding one-half being counted as
one and other fractions being disregarded.

^Draft Constitution prepared by the Constitutional Adviser, October 1947, Clause
43. Select Documents 111, 1, pp, 14-5.

-^Draft Constitution prepared by the Drafting Committee, Feb. 1948, Select
Documents III, 6. pp. 529-31.

3C. A. DeK VoL VII, pp. 969, 973-4.

Hbid., pp. 973-4

348

FRAMING OF INDIA’S CONSTITUTION

Ambedkar proposed that the words “by the total niimber of such .members”
should be replaced by the words “by the total number of the elected members
of, both ' Houses of Parliament”, , so that the total number of
■YOtes to be cast by the members of Parliament would be ,the
same number as that which the members of the State Legislatures
would have. This amendment was accepted by „ the Assembly'.
K. ■ T. Shah’s amendment proposed that the President should be
elected by all adult citizens by secret ballotl This proposition had little
support. Ambedkar pointed out the gigantic nature of the task of getting
an estimated electorate of 158 million- to take' part in an election. He said
that the size of the electorate would forbid the adoption of adult suffrage in
this matter. Secondly, it would not be possible for the Government to provide
the necessary administrative machinery to be placed at the different polling
stations to enable these 158 million to come to the polls and record their
votes". Apart from all this, a most important consideration which weighed
with the Drafting Committee and also with the Union Constitution
Committee in deciding to rule out adult suffrage was the position of the
President in the Constitution. If the President was to have the same position
as the President of the United States, it was only natural that the choice of
such a person should be made directly by the people. But under the
Constitution he was “only a figurehead”. Ambedkar explained that having
regard to the size of the electorate, the absence of administrative machinery
to conduct elections on so vast a scale and the fact that the President
did not possess any executive or administrative powers, it was unnecessary
to go into the question of adult suffrage and to provide for the election
of the President on that basis. The Assembly negatived the
amendment.

The electoral college,, according to the Draft Constitutton, was composed
of all members of Parliament and the elected members of Legislatures of the
States. Three suggestions were made regarding this composition. The first
sought to constitute a college consisting of members of Parliament and an
equal number of persons elected by the Legislatures of the States on a
population basis by the method of the single transferable vote\ The second
suggestion was that all the members, elected as well as nominated, of the
State Legislatures should be members of the electoral college*'. The third
suggestion was that the electoral college should be composed only of elected
members, both of .Parliament and of the Legislatures of the States"; this
was adopted by the Assembly, which also adopted a further amendment

A. Deb., VoL VII, pp. 1002 and 1018.

mid., p. 991. ■ . . ■ ■

mid., pp. 997-8. ■ ■

*‘lbid., p. 988, Amendment by Damodar Swarup Seth.

p. 993. Amendment by Mohd. Tahir.

^Ibid., p. 994. Amendment by Tajamul Husain.

THE PRESIDENT AND THE EXECUTIVE

34t

moved by Ambedkar to make it clear that the expression,’ “State Legislature''
as used in the article meant, where the’ Legislature was bicameral,., the Lower
House of the Legislature. The draft article was. adopted with these -changes.
At the revision stage some verbal changes were made and the articles' wers-
numbered 54 and 55.

Term of Office of President {Article 56)

The suggestions received in the initial stages varied from a three-year to -a
six-year term, of office for the F,resident\ In his memorandum of May 30,
1947, the Constitutional Adviser suggested a five-year term. (The, term' of
office of the Governor-General and all Governors under the British regime
was five years.) This proposal was accepted by the Union Constitution
Committee and by the Constituent Assembly. Accordingly provision was
made in the Draft Constitution of February, 1948, that the President would
hold office for five years unless he resigned earlier, or was removed by
impeachment. In order to secure continuity of office, it was also provided
that he would, notwithstanding the expiration of his term, continue to hold
office till his successor entered upon his office^ This provision was adopted
at all subsequent stages without any opposition.

An interesting (though minor) point was raised in the Constituent Assembly.
To whom should the President address his resignation if he wished to resign?
The Draft Constitution laid down that it should be addressed to the Chairman
of the Council of States and the Speaker of the House of the People. In the
course of discussion two suggestions were made — one that the resignation
should be addressed to the members of Parliament, the other that it should
be addressed to the Vice-President who should communicate it to the Speaker
of the House of the Feopiek The second suggestion was accepted by
Ambedkar and adopted by the Assembly.

Eligibility for re-election {Article 57)

On the question of the eligibility of a retiring President to stand for re-
election, the questionnaire issued by the Constitutional Adviser in March
1947, set out the position under other constitutions. In the United States a
convention had grown up that the same person should not hold office for

*A three year term was recommended in the memorandum of N. Gopalaswami
Ayyangar and Alladi Krishnaswami Ayyar. Select Documents II, 15(vi), p. 542. K. M.
Panlkkar suggested a four-year period and Syama Prasad Mookerjee six years (Ihid.,
II, 15(iii), p. 530). K. M. Munshi suggested five years.

^Draft Constitution prepared by the Drafting Committee Feb; 1948, article 45.
Select Documents III, '6, p. 53L,

®C. A, Deb., Vol, VII, p. 1020. Amendments moved by Mohd. Tahir and B. M.
Gupte,'

350

FRAMING OF INDIA’S CONSTITUTION

more than two consecutive terms\ thcoigh during World War II, Franklin
Roosevelt actually went into the fourth term : in Switzerland re-election is
prohibited : and in Ireland the President is eligible for re-election for a
second term®,

The Union Constitution Committee recommended that a retiring President
would be eligible for re-election for a second term of office but not longer®
and this suggestion was accepted by the Assembly on July 24, 1947, after
Jawaharlal Nehru had explained that ten years would be the maximum
period for any normal human constitution to bear the heavy burden\ But
when the I>raft Constitution came under discussion, the point was made on
I>ecember 13, 1948, that, if there was a capable and efficient man, there was
no reason why he should not be allowed to serve the country even beyond
ten years, and an amendment was moved for removing the restriction^ This
argument was accepted by Ambedkar and all restrictions on the eligibility
for re-election were withdrawn; subject to his fulfilling the other requirements,
a person who has held the office of President is eligible for re-election without
any limitation as to the number of terms.

Qualifications for election as President {Article 58)

The question of prescribing qualifications for eligibility to hold office as
President came under consideration in the early stages of the constitution-
making. The Constitutional Adviser, in his memorandum of May 30, 1947,
had suggested that every citizen of India who was 35 years old should be
eligible®. The Union Constitution Committee’s recommendation was that in
order to be eligible for Presidentship a person should not only satisfy this age
qualification and fulfil the requirement of citizenship but should also be
qualified for election as a member of the House of the People'. The Assembly
accepted this proposal. The Drafting Committee laid down the additional
requirement that a candidate for the President’s office should not be the
holder of an “office or position of emolument” under the Government of
India or the Government of any State or a local or other authority. (This
phrase was subsequently changed to “office of profit”). A serving Minister
of the Union or any of the States would, however, be eligible. This provision
was adopted by the Assembly with textual changes and with a subsequent
amendment which provided that the serving President, the Vice-President,
and the Governors, the Rajpramukhs and Uprajpramukhs of States could

^This has since become law (the Twenty-Second Amendment).

^Questionnaire, March 17, 1947. Select Documents 11, 13, p. 435.

^Report, Part IV, para 2(3). Select Documents 11, 18(i), p. 579.

.4. De&., VoL IV, p. 849.

®C. Deh., Vol. VII, pp. 1023-4. Amendment by K. C. Sharma.

^Select Documents 11, 15(ii), clause 3, p. 475.

nbid., ll, 18(i), p. 579 and C. A. Deb., Vol IV, p. 854.

THE PRESIDENT AND THE EXECUTIVE

351

also, even though they held offices of profit, stand for election to the ofiice
of President^

When this article was being discussed in the Constituent Assembly on
December 27, 1948, K. T. Shah propoised three amendments, all designed to
ensure that the holder of the high office of President of India was altogether
beyond reproach. The first of these amendments was to the effect that no
person should be eligible for election as President if he was '^disqualified by
reason of any conviction for treason, or any offence against the State, or any
violation of the Constitution”. Shah argued that it was no use saying that
this was understood and that no one with common sense would like to tiave
as President one who had been guilty of treason, or who had violated the
Constitution : matters of common sense were liable to be ignored when
party passions were aroused, or in the heat of election fever. He contended
therefore that the inclusion of this disqualification would be necessary as a
safeguard for the free and honest working of the Constitution.

The second amendment proposed by Shah required that any Minister,
before offering himself as a candidate for the Presidential election, should
resign his office as Minister. In support of this amendment, he maintained
that there was great danger in a Minister offering himself as a candidate. He
as well as his workers and canvassers were likely to resort to practices which
under any system of constitutional government would deserve condemnation.
There should be no suspicion that a person holding office as Minister was
able to utilize his position and influence in order to get elected as President.

The third amendment by Shah contained a proposal that a person elected
as President should, before he entered upon his office, “declare and divest
himself of all his right, title, share, property and interest in any enterprise,
business or trade” which was in any way aided or supported by the
Government and that all such right, title, share or interest should be bought
by the Government of India : the principle contained in this amendment was
of the highest importance to an honourable and idealistic government of
the State :

That the President should be free from any entanglements, that the President
should be free from any interest other than that of the State as a whole,
that he should be open to no temptation except the desire to serve his
country to the best of his ability, even in the ornamental post that he
may be given in the Constitution, is of such supreme importance that I
think we cannot be too strong and too definite about removing from his
path every possible, every imaginable, every conceivable temptation^

Ambedkar gave a detailed reply to these suggestions. Dealing with the first
proposal, he drew attention to the fact that a candidate for the Presidential
office had to be qualified for election to Parliament; and that it was open

'T. A. Deb.. Vol VII, pp. 1027, 1037 and Vol X, p. 216.

mid,. Yol VII, pp. 1026-9.

352

FRAMING OF INDIANS CONSTITUTION

to Parliament by law to lay down what were to be the disqualiications for
its membership. In view of this, he suggested that it might be left to
Parliament to prescribe disqualifications of the kind Shah had in view.

Ambc^dkar was strongly opposed to the proposal that a Minister should
resign his office before standing for election as President. His main point
was that, in order to eliminate the influence which Ministers might exercise
on elections, the Constitution had provided a' special machinery, namely, the
Election Commission, to be in charge of elections, both for the Centre and
the States ; the Election Commission would be in charge and have complete
superintendence, direction and control and management of elections, so^ that
whatever possibility existed of Ministers exercising their' influence over
elections would be eliminated.

Replying to the third amendment, that the President should divest himself
of his interest in concerns aided by the Government, Ambedkar described
this as one of the most novel propositions that he had ever seen ; he could
not remember any constitution anywhere in the world which laid down such
a condition. If any such condition was necessary, it would have been included
in the Constitution of the United States, where the President has considerable
administrative control and therefore the greatest opportunity of personal
aggrandisement. And yet that Constitution was silent about it. The President
of the Indian Union was merely a nominal figurehead : he had no discretion,
nor any powers. Therefore, so far as the President of India was concerned,
this provision was unnecessary. Ambedkar added :

If at all it is necessary it should be with regard to the Prime Ministers and
the other Ministers of State, because it is they who are in complete control
of the administration of the State. If any person under the Government
of India has any opportunity of aggrandizing himself, it is either the
Prime Minister or the Ministers of State and such a provision ought to
have been imposed upon them during their tenure and not on
the President^

The amendments were not adopted by the Assembly, and the article with
the amendments accepted by the Assembly was included as article 58.

Conditions for the President's Office {Article 59)

In his memorandum of May 30, 1947„ on the Union Constitution, the
Constitutional Adviser had suggested four conditions for the office of the
President, namely, (1) the President should not be a member of either House
of the Union Parliament,; and if a member of either House was elected
President, he should be deemed to have vacated his seat in that House : ,(2)
the President should not hold any other office or position of emolument ;
(3) the President should have an official residence and should receive such

A. Deb., Vol Vll, pp. 1034-6.

THE PRESIDENT AND THE EXECUTIVE

3SS

emolumeiits and allowances as might be determined by an Act of the Union
Parliament; and until then, such emoluments and allowances as were to be
prescribed in a schedule to thC' Constitution ; (4) the emoluments, and
allowances of the President should not be diminished during his term of
ofBce.h These conditions were accepted by the Union Constitution Committee
and thereafter by the Constituent Assembly without any substantial change,
except that when these provisions were considered in the Assembly, it, was
also laid down that he should not be a member of any Provincial Legislature^

When this matter was discussed in the Constituent Assembly on July 24,
1947, suggestions were made to safeguard the absolute rectitude and
impartiality of the President. It was proposed by K. Santhanam that the
President should declare all his holdings in shares*; and that he should not
during his term of office acquire shares or immovable property except through
a special procedure. Ramnarayaii Singh proposed an amendment to the
effect that the President should not be a party man. There was some
discussion on these points. Jawaharlal Nehru suggested as a general principle
that the President should not be actively connected or associated with the
management of a gainful office; but it was not necessary to go any further,
and such matters might be left for suitable conventions to grow up. Nehru
also thought that it would be “completely impractical” to provide that the
President would not be a party man ; what was required was that after his
election the President should function with complete impartiality, whether
he was a party man or nof .

Subsequently the conditions of office as approved by the Assembly were
incorporated in article 48 of the Draft Constitution framed by the Drafting
Committee. With minor changes they were adopted by the Assembly.

Impeachment {Article 61)

The Constitutional Adviser in his memorandum of May 30, 1947, did not
include any provision for the impeachment of the President. He set out the
procedure for impeachment followed in the United States of America, v/here
the President is removable from office on impeachment and conviction for
treason, bribery or other high crimes and misdemeanours. The House of
Representatives has the sole power of impeachment and the Senate the sole
power to try all impeachments. There can be no conviction without the
concurrence of at least two-thirds of the members of the Senate present. In
Ireland the President can be impeached for stated misbehaviour: the charge

Draft clauses prepared by the Constitutional Adviser, May 30, 1947. Select
Documents Ti,, pp. 499-500.

®lJnlon Constitution Committee Report Part 11, Clause 4. Select Documents II,
18(1), p. 579, a A, Deb.. Vol. IV, p. 858.

A. Deb,, Vol. IV, pp. 858-9.

T5W., pp. 857 and 863-4.

354

FRAMING OF INDIA’S CONSTITUTION

caa t)e preferrea by either House of Parliament, but would require the support
of not less than two-thirds of its total membership. The other House should
investigate the charge ; a conviction would require the support of not less
than two-thirds of the total membership of the investigating House. The
Resolution embodying a conviction would operate to remove the President
from his officeh For India, the Constitutional Adviser suggested,, omitting
the impeachment procedure, a simple provision that the President might be
removed from office for. misbehaviour or infirmity of mind or body by a
resolution of each of the two Houses of Parliament supported by not less
than two-thirds of the total membership of each Housed

Considering this proposal at its meeting held on June 8, 1947, the Union
Constitution Committee decided that the President should be liable to
impeachment for violation of the Constitution and that provision should
be made whereby he could be removed from office on such impeachment
by a vote of not less than two-thirds of the total membership of the House
by which he would be tried". In its report of July 4, 1947, the committee
recommended accordingly that the President could be removed by
impeachment for violation of the Constitutioii\ The procedure for
impeachment was also laid down : a charge could be preferred by either
House of the Federal Parliament, but no proposal to prefer such a charge
could be adopted by that House except upon a resolution supported by not
less than two-thirds of its total membership. The other House would dieii
investigate the charge or cause the charge to be investigated and the President
would have the right to appear and to be represented at such investigation.
If as a result of the investigation a resolution was passed by a majority of
not less than two-thirds of its total membership that the charge had been
sustained, such a resolution would automatically have the effect of removing
•the President from office from the day on which it was passed. This
recommendation was adopted by the Assembly on July 24, 1947".

The Drafting Committee later added one more condition : that no charge
of violation of the Constitution should be preferred against the President
unless a resolution containing the charge was moved after notice in writing,
signed by not less than thirty members of the complaining House, had been
given of the intention to move the resolution^

The article dealing with the impeachment procedure was taken up for
consideration in the Constituent Assembly on December 28, 1948. Shankarrao

^Memorandum on Union Constitution prepared by the Constitutional Adviser,
May 30, 1947. Select Documents II, 15(ii), p. 474.

Hbid.

^Minutes, June 8, 1947. Select Documents II, 16, p. 555.

^Report, Part IV, Clause 2. Select Documents II, 18{i), p. 579.

A. Deb.. Vol. IV, pp. 848-53.

®Draft Constitution prepared by the Drafting Committee, Feb., 1948, Art. 50.
Select Documents III, 6, p. 533.

THE PRESIDENT AND THE EXECUTIVE

355

Deo moved an amendment suggesting that the number of persons required
to sign a notice of a resolution of impeachment should be increased from
thirty to one-fourth of the total number of membersh : B. M. Gupte suggested
that there should be at least fourteen days’ notice of such a resolution®. Both
these suggestions were accepted by Ambedkar.

There were a few more amendments. Kazi Syed Karimuddin suggested
that when either House of Parliament met as an impeaching House, its
'meeting should be presided over by the Chief Justice of the Supreme Court
whose decision on the admissibility ■ of evidence should be finaf. ' He gave
two reasons for this amendment. If this suggestion was not accepted, either
the Speaker, if it was the Lower House, or the Vice-President if it was the
Upper House, would have to preside at such meetings : and in Karimuddin’s
opinion such a procedure would not be conducive to unbiassed proceedings.
Secondly, in the course of impeachment there' might arise several mixed
questions of law and fact and also questions about the admissibility of
evidence, which would undoubtedly require the guidance of a man with the
requisite legal knowledge. Ambedkar, replying, said that he had no quarrel
with the objective behind the proposal; but that these matters could
more appropriately be left for the two Houses to provide in their rules
of procedure. With the Assembly’s concurrence the amendment was
negatived.

Another proposal by Karimuddin was that the President should be liable
to impeachment, not only for violation of the Constitution but also for treason,
bribery or other high crimes and misdemeanoursh This amendment was not
accepted by Ambedkar on the ground that the phrase ‘Violation of the
Constitution” was sufficiently comprehensive and included treason, bribery
and other high crimes or misdemeanours^

The article with the amendments accepted by Ambedkar was adopted by
the Assembly.

Time of holding election to fill vacancy in the office of President

{Article 62)

In its report of July 4, 1947, the Union Constitution Committee
recommended that appropriate provision should be made in the Constitution
for filling vacancies in the office of President as and when they arose. The
committee was of the view that such election should be held within six
months of the occurrence of the vacancy : and the person elected as President
to fill the vacancy should be entitled to hold office for the full term of five

^C.A. Deb., Vol. VII, p. 1064.
p. 1065.'

^Ibid ., ' p-. 1066.' '

nUd., p. 1063.

nbid., p. imt , ■ ■

"356

FRAMING OF INDIA’S CONSTITUTION

years'. This matter was discussed by the Assembly on July 24, 1947, wheu
it considered the committee’s proposal. The Assembly adopted the proposal
iu the folIowiBg terms :

. Appropriate provision should be made for elections to fill vacancies in the
office of President, whether occurring before, or at the end of the normal
term of an incumbent of that office, the detailed procedure for elections
being left to be regulated by Act of the Federal Parliament :

Provided that in the case of a vacancy occurring before the end of the
normal term of a particular incumbent —

(a) the election to fill the vacancy shall be held as soon as possible after
and in no case later than six months from the date of occurrence of
the vacancy; and

(b) the person elected as President at such election shall be entitled to hold
office for the full term of five years".

This was incorporated in the Draft Constitution in suitable terms and later
adopted by the Assembly. In the course of discussion a suggestion was made
that a person elected to fill a casual vacancy in the office of President should
only be allowed to remain in office for the balance of the term of office
and not for the full term of five years. The object behind this proposal
was that a new session of Parliament should ordinarily coincide with the
election of a new President. Another suggestion was made that, if there was
a vacancy in the office of the President arising in the middle of a term, the
Vice-President should act as President for the remaining term of office in
which the vacancy so occurred. Neither of these suggested amendments was
accepted by the Assembly ; and the article in terms of the Union Constitution
Committee’s recommendation was adopted. The Vice-President would act in
a vacancy temporarily tiU a new President was elected {See article 65.).

Vice-President {Articles 63 to 69)

Two replies received from K. M. Panikkar and Syama Prasad Mookerjee
to the questionnaire issued by the Constitutional Adviser on March 17, 1947,
had suggested that there should be a Vice-President of India who would act
as President when there was a vacancy in the office. Panikkar also suggested
that the Vice-President would preside over meetings of the upper chamber
of the Union Legislature". No provision for a Vice-President was, however,
made in the memorandum on the Union Constitution prepared by the
Constitutional Adviser on May 30, 1947. In this memorandum, B. N. Rau
had suggested that in the event of the absence of the President or of his
death, removal from office or incapacity to discharge his functions, such

^Report, Part IV, Ch. I, Select Documents II, 18(i), pp. 579-80.

v4, VoL IV, p. 866.

^Select Documents 52930.

THE PRESIDENT AND THE EXECUTIVE

357

functions would be performed by a commission consisting of the Chief, Justice
of the Supreme Court and the presiding officers of the two Houses of the
Union Legislature. ■ He had also recommended that the Council of Slate
proposed .by him to advise the President on ce-rtaiii specific matters might
by a majority of its members make such provision as it thought fit for the
discharge of the functions of the President in any unforeseen contingency. The
Constitutional Adviser gave his reasons for this proposal. In the United
States of America the ' President and the Vice-President were both elected at
the same time and by the same procedure. If this principle was adopted for
India, the two Houses of the Union Legislature, which according to the
memorandum were to elect the President, would at the same time elect the
Vice-President. This would mean that the Chairman of the Upper House of
the Legislature would be a person elected by both the Houses in a joint
session, which (he considered) was inappropriate. Nor did he consider it
appropriate to adopt the reverse plan to make the Chairman of the Upper
House the ex-officio Vice-President apparently for the reason that the Vice-
President would function as President in the event of the latter’s absence or
inability to discharge the functions, and since the President himself would
be the choice of both Houses sitting together, it would not be proper that an
officiating incumbent of the office was a person elected by one of the Houses.
Moreover, the Constitutional Adviser thought that in an executive of the
parliamentary type there was hardly any room for a Vice-President between
the President and the Prime Minister. In these circumstances, he suggested
that the best course would be to copy the Irish plan of having a commission
to discharge the President’s functions when there was a casual vacancy in
that office'.

The Union Constitution Committee at its meeting on June 8, 1947, decided
in favour of having a Vice-Presidenf . The committee accordingly included
a recommendation in its report that the Vice-President should be elected by
both the Houses of Parliament in joint session on the system of proportional
representation by means of the single transferable vote. He would be ex-
o^io President of the Council of States and perform the duties of the President
in the event of the latter’s absence, or of his death, resignation, removal from
office, incapacity or failure to discharge his functions. This recommendation
was discussed by the Constituent Assembly on July 25, 1947^ when an
amendment was moved that the electoral college constituted to elect the
President should also elect the Vice-President. This proposal was negatived

Memorandem on the Union Constitution prepared by the Constitutional Adviser,
May 30, 1947, Clause 6. Select Documents II, 15{ii), pp. 475-6. The proposal of a
Council of State, suggested as a sort of Privy Council to aid and advise the President
on matters of national interest where party bias had to be avoided, was not accepted
by the Union Constitution Committee.

^Minutes, II, 16, p. 555.

A. Deb., Vo\. IV, pp. 872-82.

S'SS

: framing of INDIA’S CONSTiTOTION"

by the Assembly. '' Another amendment fixing the minimum age of the Vice-
President as 35 was adopted^.

In 'the Draft Constitution of February 1948, prepared by the Drafting
Committee, provisions were made incorporating these decisions. The Draft
contained five articles relating to the Vice-Presidenf . The substance of the
provisions included was that the Vice-President would be ex-officio Chairman
of the Council of States, except during any period when he acted as Presidenr
or discharged the functions of the President ; that he would be elected by
members of both Houses of Parliament assembled at a joint meeting in
accordance with the system of proportional representation by means of the
single transferable vote ; that his normal tenure of oflSce would be five years
as in the case of the President : that he would be liable to removal by a
resolution of no-confidence passed by a majority of all the then members
of the Council of States and agreed to by the House of the People ; that he
would act as President in the event of any vacancy occurring in that office
until a new President elected in accordance with the Constitution assumed
office; and that he would discharge the functions of the President when the
latter was unable to discharge them owing to absence, illness or any other
cause. Similar qualifications were laid down as for the President, namely,
the Vice-President should be a citizen of India, should have completed the
age of 35 years and should be qualified for election as a member of the
Council of States, He was in the normal course to draw the salary and
emoluments as the Chairman of the Council of States.

Tliese articles were discussed in the Assembly on December 28 and 29,
1948, when Ambedkar moved an amendment of a formal character specifically
providing that the Vice-President would be entitled to such privileges,
emoluments and allowances as might be determined by law for any period
during which he was acting as, or performing the duties of, the President.
The amendment also proposed that until such provision was made by
Parliament, he should draw the same emoluments and allowances and be
entitled to the same privileges as were provided in the Constitution for the
Presidenf . This amendment was adopted.

An amendment was moved by K. T. Shah that the Vice-President should
be elected at the same lime and in the same manner as the President. A
similar amendment was also moved by Mohammad Tahir^ Ambedkar
explained that as the President would be the Head of the State and Ms powers
would extend both to the administration at the Centre as well as in the States,
it was necessary that in his election not only the members of Parliament but
members of the State Legislatures should also have a voice. But the normal

1C 'A, Deb.. Vol. IV, pp. 882-3.

^Articles 52-56, Select Documents III, 6, pp. 533-5.
*C A, Deb.. Vol. VII, p. 1090.

Hbid,. p. 1093.

THE PRESIDENT AND THE EXECUTIVE

359

functions of the Vice-President were merely to preside over the Council of
States and it was only on rare occasions, and that too for temporary f^riods,
that he might be called upon to* assume the duties of the President. It was,
therefore, not necessary that members of the State Legislatures should, be
invited to tale part in the election of the Vice-Presidenth

There was considerable discussion regarding the provision concerning the
removal of the Vice-President. K. T. Shah moved an amendment proposing
that he could be removed from office only “for reason duly proved, or for
any violation of the Constitution duly established, or for conviction for any
offence constituting a disqualification for election to the office of a President,
Vice-President or member of Parliament, or for physical or mental incapacity
duly certified, or for bribery and cO'rruption, duly proved”. M'ahboob Ali
Baig wanted to provide that the Vice-President could only be removed by a
two-thirds majority of the total membership of the Council of States, agreed
to by a similar two-thirds majority of the total membership of the House
of the Peopled Dealing with Shah’s amendment, Ambedkar did not consider
it necessary to specify bribery, corruption or the other offences as reasons
for the removal of the Vice-President. He argued :

Want of confidence is a very large phrase and is big enough to include
any grounds such as corruption, bribery, etc.

Replying to Mahboob Ali Baig’s amendment requiring a two-thirds
majority for the removal of the Vice-President, Ambedkar pointed out that
the position of the Vice-President was really that of the Chairman of the
Council of States, and that so far as his functions were concerned, they were
similar to those of the Speaker of the House of the People. Consequently, the
rules which were made applicable to the removal of the Speaker were also
made applicable to the removal of the Vice-Presidenf .

Only the amendment moved by Ambedkar was accepted and the amended
articles relating to the Vice-President were passed by the Assembly.

Vesting of Executive Power {Articles 53 and 73)

In the matter of vesting of the executive authority of the Union in the
President and its exercise through a Ministry responsible to Parliament, the
Government of India Act, 1935, furnished, a precedent. Section 1 of that.
Act had laid down that the executive authority of the Federation would 5
subject to the provisions of the Act, be exercised ‘‘on behalf of His* Majesty”
by the Governor-General either directly or through officers subordinates to

' 1C. X Vol. VII, pp. IIOO-I.

Hbld., pp. 1105 ff.

p. 1114. This statement was probably not strictly correct. The provision for
the removal of the Speaker is by an adverse vote in the House of the People, while
the Vice-President can only be removed by an adverse vote of the Council of States,
agreed to by the House of the People.

FRAMING OF INDIA’S CONSTITIJTION

him: the section had also provided that this would not have the effect of,
transferring to the Governor-General any function conferred by any existing
law on any other authority. Section 8 laid down in a general manner the
extent of the executive authority of the Federation. Such authority would
extend inter alia to all matters in the Federal Legislative List; to the raising
in India of naval military and air forces and to the governance of all His
Majesty’s forces borne on the Indian establishment ; and to the exercise of
jurisdiction in the tribal areas. So far as the federated States were concerned,
the exercise of executive authority was to be subject to the limitations
contained in their Instruments of Accession ; and even where they acceded
on specific subjects, the Rulers would continue to exercise executive power,
except to the extent that such power was assumed by the Federation through
a federal law.

Sections 9 and 10 of the Act dealt with Ministers. The phraseology
adopted was that in so far as the matters in the area of ministerial
responsibility were concerned, the Council of Ministers would ‘‘aid and advise
the Governor-GeneraF’, but there was a specific clause that the question
whether any and if so what advice was given to the Governor-General would
not be inquired into by any court. The parliamentary traditions of joint
responsibility as well as accountability to the Legislature were left to develop
by convention ; but guidance was to be given to the Governor-General by
the Instrument of Instructions to be issued by the Crown.

In his memorandum of May 30, 1947, prepared for the use of the Union
Constitution Committee^ the Constitutional Adviser had borrowed the main
provisions from the Act of 1935. Thus the “vesting” provision suggested
by him was that the executive power of the Union would be exercised by
the President, subject to the provisions of the Constitution, either directly or
through officers subordinate to him ; a clause was also added to the effect
that this provision would not be deemed to transfer to the President any
functions already conferred by existing law on any court, judge or officer,
or any local or other authority. The Constitutional Adviser also included a
formal provision enabling Parliament to confer functions on subordinate
and other' authorities.

K. M. Panikkar had suggested, in his reply to the questionnaire issued by
the Constitutional Adviser on March 17, 1947, that the Head of the State
should be the one expression of its unity : the de jure nominal head of the
executive ; and also that he should be the Commander-in-Chief of the
Defence Forces of the Union". Adopting this lead, the Union Constitution
Committee recommended that subject to the provisions of the Constitution
the executive authority of the Federation would vest in the President ; and
it added that the supreme command of the Defence Forces of the country

^Select Documents H, pp. 476, 501.

Hbid., II 15(iii), pp. 528-9,

THE PRESIDENT AND THE EXECUTIVE

361

should also be specifically vested in the President^ This was adopted by
the Constituent Assembly,

The article as framed by B. N. Rau in the Draft Constitution of October,
1947, and adopted by the Drafting Committee accordingly read :

42. (1) The executive power of the Union shall be vested in the President
and may be exercised by him in accordance with the Constitution and the
law.

(2) Without prejudice to the generality of the foregoing provision, the
supreme command of the Defence Forces of India shall be vested in the
President and the exercise thereof shall be regulated by law.

(3) Nothing in this article shall —

(a) be deemed to transfer to the President any functions conferred by
any existing law on the Government of any State or other authority ; or

(b) prevent Parliament from conferring by law functions on authorities
other than the President”.

This article came up before the Constituent Assembly on December 10,
1948'. K. T. Shah moved two amendments : the first to declare that the
sovereign executive power and authority of the Union would be vested in the
President ; an alternative amendment to empower the President to exercise
his authority with the advice and help of "‘such ministers, officers or
servants of the State as may be deemed necessary by him”. Explaining its
purpose Shah said that the President should have the right to consult any
“expert officer” and seek his advice ; and while he would have no right to
veto or discard the advice of his ministers, it would be his right and duty
as the head of the State and the person on whom the responsibility for
administration ultimately vested, to point out to his Ministers the aspects of
any matter which they had ignored or overlooked ; in othex: words, he would
continually warn and advise his Ministers. For the proper discharge of this
function, Shah maintained, the President should have the right to send for
any officer, any expert, any State servant, in order to assist him in formulating
his own views on the matters placed before him.

The second was a lengthy amendment through which K. T. Shah sought to
set out the several functions and powers of the President. This list of powers
included power to convene or dissolve the Legislature ; to place before it
legislative and financial proposals; to assent or refuse assent to Bills passed
by the Legislature ; to declare war and make peace ; to appoint ail executive
and judicial officers, including Ministers, and to conduct and supervise any
referendum. A notable proposal covered by the amendment was that if a
Bill, considered necessary for the safety of the State, its integrity or defence

: "^Report,' Select, ■Documents II, 18(i), p. 580; C. A. Deb., Vol. IV, p. 1028.

^Draft Constitution prepared by the Drafting Committee, Feb. 1948,
Documents 111 j p. 529.

"C. .4:. . Vol. VII, pp.: 975-87.

362

FRAMING OF INDIANS CONSTITUTION

or lor safeguarding its interests in any emergency was not passed by
Parliament, the President could, if necessary, hold a referendum of the
people..

Explaining his ame.ndments, Shah referred to two points of difference
between conditions in the United Kingdom and in India, In size and
population India was a much bigger country, and what might have suited
the United Kingdom need not necessarily be suitable for India. Again, Shah
said, the United Kingdom had a long history of precedents and conventions
which was lacking in India. On his proposal for a referendum, he said :
If you want that the people be consulted in any emergency when your
two organs of power, viz., the legislature and executive, are unable to
agree, then the test will lie in your readiness to consult the people.

These amendments evoked a vigorous reaction from K. M. Munshi and
Alladi Krishnaswami Ayyar who saw in them an attempt to create a
fundamental change in the whole structure of the Constitution and introduce
the type of executive government contained in the Constitution of the United
States of America. Alladi Krishnaswami Ayyar pointed out that, apart from
the fact that the Assembly as well as its various committees had decided on a
Cabinet type of government in preference to a Presidential executive, there
were weighty reasons in favour of the former. He briefly referred to the
historical conditions under which the Presidential system was started and
worked in America ; while it had worked splendidly in America, this was due
to the way in which America had been built up. In India, on the other
hand, there had to be close union between the legislature and the executive
in the early stages of the democratic working of the machinery. An infant
democracy could not afford to take the risk of a perpetual cleavage, feud
or conflict between the executive and the legislature. The object of the new
constitutional structure was to prevent such a conflict and to promote harmony
between the different parts of the governmental system. That was why the
Assembly and its committees adopted the Cabinet system of government^
The Assembly negatived K. T. Shah’s amendments and certain other
amendments of a more or less verbal nature and adopted the article as
proposed by the Drafting Coiiimitteex At the revision stage it was numbered
article 53.

On the subject of the extent of the executive authority of the Union, the
memorandum prepared by the Constitutional Adviser merely contained a
suggestion that the executive authority of the Union should extend to all
matters in respect of which Parliament had power to make laws and to any
other matters over which authority had been conferred on the Union by
any treaty or agreement®. In the scheme of the Government of India Act,

Del?., VoL Vn, pp. 984-6.

Hbid., p. 986.

^Select Documents II, 15(ii), p. 476.

THE PRESIDENT AND THE EXECUTIVE

363 .

1935a there were three legislative lists; the Federal List specifying matters
excliisive.ly withi,ii the legislative jurisdiction of the Federal . Legislature, the
Provincial List comprising matters exclusively within the jurisdiction of the
Provincial Legislatures, and a third list of concurrent subjects in which both
the Federal and the Provincial Legislatures had concurrent power to make
laws. Executive authority was vested in the Federal Government in regard
to matters included in the Federal List, and in the Provincial Governments
in matters in the Provincial List. In matters in the concurrent field such
authority was normally assigned to the Provinces, but in regard to some of
these matters falling within the field of social welfare, the Federal Legislature
was given the power to issue directions by law to Provinces as to the carrying
into execution of Acts ot the Federal Legislature relating to these matters.’
At the time the memorandum of the Constitutional Adviser was prepared, no
decision had been taken on the distribution of powers between the Centre
and the units : it therefore limited its suggestion to provision being made in
the Constitution regarding the administrative relations between the Union and
the units depending upon the distribution of legislative powers between the
Union and the units\

At its meeting held on July 6, 1947, almost immediately after the
announcement of partition, the Union Constitution Committee decided that
there should be three exhaustive legislative lists. Federal* Provincial and
Concurrent, with residuary powers reserved .to the Centred

The committee also decided that as a general principle the executive
authority of the Federation should be co-extensive with its legislative
authority. This meant that the Central Government would exercise executive
power on federal subjects and the Governments of the units on ‘provinciaF
subjects. There was, however, the third list of concurrent subjects on which
both the Centre and the units could legislate ; but no decision was taken at
this stage on the precise distribution of executive authority in these matters.
The Report of the Union Constitution Committee also did not resolve this
issue; it substantially reproduced the provision made in the memorandum
prepared by the Constitutional Adviser\

When the Report of the Union Constitution Committee was discussed in
the Constituent Assembly in July 1947, the debate so far as it related to
executive authority was confined to an amendment on the clause about Indian
States. The general clause was adopted without any discussion^

The provisions included by the Constitutional Adviser in the Draft
Constitution of October, 1947 were based on those of the Government of
India Act of 1935. The Draft Constitution provided that subject to the

'^Select Documents II, !5(ii) pp. 491-2.
mid,, II, 16, pp. 553-4.

II, 18(1), p. 580.

X. A. Deb,, VoL IV, pp.' 887-903.

3,64

FRAMING OF INDIA’S CONSTITOTION

provisioii,s o,f the Constitution, the executive authority of the Centre would
extend (a) to matters with respect to which Parliament had power to make-
laws ; and (b) to the exercise of such rights, authority and jurisdictioii as
were exercisable by the Government of India by virtue of any treaty or
agreement. A proviso was added to the effect that, except as otherwise
provided in the Constitution, the executive authority of the Union would not
extend in any unit to matters with respect to which the ' Legislature of the
unit had power to make laws.

Thus power to exercise executive authority on the Concurrent List subjects
was according to this Draft conferred on the units'.

The Drafting Committee made a change in this position. According to
its redraft of the article, suggested in February 1948, it was laid down that
the executive power of the Union “shall not, save as expressly provided in
tliis Constitution or in any law made by Parliament, extend in any State
to matters with respect to which the Legislature of the State has also power
to make laws”l The effect of this change was that normally it would be
the responsibility of the units to take executive action in the concurrent
field; but the Federation and officers and authorities of the Federation could,
by virtue of law made by Parliament, assume executive authority in these
matters. Explaining this intention, the committee observed :

Under the present Constitution, executive authority in respect of a
Concurrent List subject vests in the Province, subject in certain matters to
the power of the Centre to give directions as to how the executive authority
shall be exercised, vide Parts I and II of the Concurrent Legislative List in
the Seventh Schedule to the Government of India Act, 1935, In the Draft
Constitution the committee has departed slightly from this plan and has
provided that the executive power shall vest in the Province (now called
the State) “save as expressly provided in this Constitution or by any law
made by Parliament”. The effect of this saving clause is that it will be
open to the Union Parliament under the new Constitution to confer
executive power on Union authorities, or, if necessary, to empower Union
authorities to give directions as to how executive power shall be exercised
by State authorities. In making this provision the committee has kept in
view the principle that executive authority should for the most part be
co-extensive with legislative poweF.

This provision evoked some criticism in the Assembly when the article was
discussed on December 29, 1948. Hriday Nath Kunzra suggested an
amendment proposing that the Union could exercise executive power only in
certain specified matters in the Concurrent List — corresponding to those

^Clause 54. Select Documents III, 1, pp. 19-20.

^Draft Constitution prepared by the Drafting Committee, Feb. 1948, proviso to
article 60(1). Select Documents III, 6, pp. 536-7,

^Ibid. See Ambedkar’s forwarding letter, para 7, p, 512.

THE PRESIDENT AND THE EXECUTIVE

365

■mentioned in Part II of the Concurrent List in the Government of India Act,
1935— factories,, welfare of labour, unemployment and social insiirance, trade
unions, industrial and labour disputes, and other matters relating to industrial
and social welfare : he was opposed to unnecessary encroachment in the
concurrent field on the powers of the States. He was willing to concede
that, it might be reasonable ‘'when labour is becoming conscious of its
rights, when questions relating to it have to be settled on an all-India basis,
that . . . there ought to be a power vested somewhere, in order that matters
of importance may be dealt with in a uniform manner”. He anticipated this
necessity by providing in his amendment that Parliament would have power
to confer, pow’^ers and impose duties on the Union Government or its officers
and authorities in respect of entries 25 to 37^ of the Concurrent List. But
he saw no reason for the wide powers incorporated in the Draft Constitution
being given to the Central Governmentv Other members (particularly those
belonging to the Muslim League) argued that there was no justification for
whittling down provincial autonomy to the extent proposed by the Drafting
Committee, one member going to the length of saying that it would be a
camouflage to call the Coiistimtion a federal one with provisions of the kind
proposed^

Speaking on these amendments, T. T. Krishnamachari pointed out that in
Canada the Rowell-Sirois Report had recommended that, particularly in
the field of labour legislation and social services, not only should power be
given to the Federation to legislate but also in the field of executive action^
In India it had been found that the power to give directions, conferred by
section 126 of the Government of India Act, 1935, was not adequate, as
Provincial Governments might plead lack of finance or of the administrative
machinery for carrying out directions issued by the Government of India. The
provision proposed by the Drafting Committee would enable the Union
Government itself to take over executive responsibility under the authority
of an Act of Parliament when public interest made such a course necessary.
Krishnamachari assured the Assembly and in particular the Muslim League
members that there would be no inroads into the freedom of action of the
State ; the pros and cons of each particular measure would be adequately
canvassed before the Centre was granted executive power in concurrent list
subject to; and he painted out that provincial opinion would be adequately
represented in Parliament. Ambedkar supplemented this argument.
Commenting on the fact that those who opposed the conferment of the power
were mostly Muslims, he mentioned that it was a concession to the old
Muslim Provinces that the Government of India Act, 1935, stated that the

^Select Documents III, 6, p. 670.

Vo!.' VII, pp. 1122-5.
pp. 1120-2, 1125-7, 1129-31.

VMi., pp. 1133-6. [Report of the Royal Commission on DomiBion-Provincml
Relations, Canada (1940).!

366

FRAMING OF INDIA’S CONSTITUTION

authority of the Central Government, so far as the field of concurrent
legislation was concerned, was limited to the issue of directions. It was not
an acceptance of the principle that the Centre should have no authority to
administer a law in the concurrent field. This provision in the Government
of India Act, 1935, was subsequently modified shortly before the outbreak
of World War II when the British Parliament enacted section 126-A permitting
the Central Government to take over the administration of concurrent and
provincial subjects. Dealing with the merits of the proviso proposed by the
Drafting Commitee, Ainbedkar referred as an example to the fundamental
right concerning untouchability. For the enforcement of this right by
Parliamentary legislation, the Union might possibly wish to set up additional
police and special machinery for prosecution and for the costs of
administration. Finally he expressed the opinion that the State Governments
should actually welcome this proviso because when the Centre took upon
itself the responsibility for executing certain laws, the financial burden on
the States would to that extent be relieved’. The amendments were negatived
by the Assembly and the articles as proposed by the Drafting Committee
accepted.

There was also some discussion on another clause of the article. In the
memorandum of May 30, 1947, as also in the Union Constitution Committee
Report", there was a clause— based on a similar provision in the Government
of India Act of 1935" — which provided that, in federated Indian States, the
Rulers would continue to exercise executive authority even in federal matters,
until otherwise provided by the appropriate federal authority. In the
Provinces the position was different ; their Governments had no executive
powers on federal subjects save as given to them by federal law. A special
provision for the federated Indian States was urged as being necessary because
unlike the Provinces, the Indian States were in fact actually exercising both
legislative and executive functions on several Union subjects. After their
accession to India, Acts of Parliament had to be passed and administrative
arrangements made by the Union Government to take over these functions.
All these arrangements for the transfer of functions would take time ; and
it would be necessary, explained Gopalaswami Ayyangar*, that pending these
arrangements, in order to avoid an administrative vacuum, the powers of
the Rulers should be continued until the Centre could actually assume
responsibility.

Though the clause was intended to prevent a hiatus arising in the accession
of the Indian States, the discussion proceeded on the more general issue of
the Indian States continuing to exercise executive authority on federal subjects.

1C. A. Deb., Vol. VII, pp. 1137-40.

^Report, Part IV, para 9. Select Documents II, 18(i), p. 580.
^Section 8(2).

'C. A. Deb., Vol. IV, p. 887.

THE PRESIDENT AND THE EXECUTIVE

367

Several members from the States considered that Union subjects should be
administered through the State Governments, and an amen,d'ment was moved
that the executive authority of a Ruler would continue to be exercisable with
respect to federal subjects subject to inspection by and directions from the
head of the federal executive^

, In order to allay the misgivings of the representatives of Indian States,
Gopalaswami Ayyangar himself moved an amendment :

The executive authority of the Ruler of a Federated State shall continue
to be exercisable in that State with respect to federal subjects, until otherwise
provided by the appropriate Federal authority in cases where it is considered
necessary.

He emphasized that the clause with this amendment took the existing facts
into account, where a large number of Indian States were actually
administering what in the new Constitution would be federal subjects. It
was being provided that this state of things would continue, but such
continuance would be subject to the overriding control of the Federation
itself. The general principle would be that the Federation would be
responsible for the executive administration of federal subjects ; but it would
not, unless it considered it necessary, interfere with the State administration
of federal subjects where it was already in existence and where it was efficient
according to proper standards". The clause as proposed by the Union
Constitution Committee was adopted by the Assembly.

In the Draft Constitution prepared by the Constitutional Adviser in October
1947, the article was worded in more general terms, covering the Provinces
as well as Indian States". The draft was accepted by the Drafting
Committee : in the form in which it was included in the Draft Constitution
it read:

Until otherwise provided by Parliament, a State and any officer or authority
of a State may, notwithstanding anything contained in this article, continue
to exercise in matters with respect to which Parliament has power to make
laws for that State such executive power or functions as the State or officer
or authority thereof could exercise immediately before the commencement
of this Constitution^

In this form the clause was adopted by the Assembly.

Power of Pardon {Article 72)

The power of the Union to grant pardons* reprieves, respites and
remissions of punishment as a specific matter to be included in the executive
authority of the Union also came under consideration in the early stages of

Vol. IV, p. 888.

; HUd.. pp. 887, 902.

^Clause 54(2). Select Documents III, l(i), p. 20.

"^Article 60(2). Select Documents III, 6, p. 537.

368

FRAMING OF INDIANS CONSTITUTION

consfitutioR-inaking. Tlie position previously obtaining in India was that this
power was for the most part regulated by provisions of the law, particularly
the. Code of Criminal Procedure. Commenting on this matter the Joint Select
Committee of 1933-34 had observed : ■

Nearly every case involving a death sentence is' tried in a District Court,
from which. an appeal lies to the High Court, and, apart from this, no death
sentence can be carried out until it has been confirmed by the High .Court.
Only three of the High Courts. . . exercise an original criminal jurisdiction,
and though there is no further appeal from these Courts, every prisoner
under sentence of death can appeal for remission or commutation of sentence
to the Provincial Government, or if he wishes, can ask for special leave to
appeal to the Privy Council. In these circumstances, the rights of a
condemned man seem to be very fully safeguarded, and w^e think that no
good purpose would be served by adding yet another Court to which appeals
can be brought. We should add that at present under the Criminal Procedure
Code, a condemned prisoner can apply for comniiitatioo of his sentence
not only to the Provincial Government but also to the Governor-General
in Council We think that under the new Constitution the determination
of applications for commutation or remission of sentence under section 401
of the Code should rest with the authority primarily responsible for the
preservation of law and order, namely, the Provincial Government, and
that the Federal Government, that is to say the Governor-General acting
on the advice of his Ministers, as the successor of the Governor-General
in Council, should no longer possess this statutory power of commuting or
remitting sentences. At the same time, we are reluctant to diminish the
opportunities for appeal which are at present enjoyed under the Indian law,
and we recommend that the power now’ exercisable in this respect by the
Governor-General in Council should henceforth vest in the Governor-
General acting in his discretion, to whom in addition there will, we assume,
be delegated as at present the prerogative power of pardonl

Accepting this recommendation, the Government of India Act, 1935, had
conferred on the Governor-General acting in his discretion power to suspend,
remit or co,m,niute sentences of deathl But apart from these statutory powers,
the prerogative of the Crown was also delegated to the Governor-General by
the Letters Patent creating his oflBice, empowering him to grant to any pe,rson
convicted by any criminal offence in British India, a pardon either free or
subject to such conditions as he thought fitl

No mention, of the power of pardon .was made in the Constitutional
Advisefs memorandum of May 30 , 1947 ; but in the reply to his questionnaire

"^lomt Select Committee on Indian Constitutional Reform: Report (1934),
para. 330.

^Section 295.

^Letters Patent issued to the Governor-General, 1937. N, Rajagopala Aiyangar.
The Govt, of India Act, 1935, p. (iv).

THE PRESIDENT AND THE EXECUTIVE

369

of March 17^ 1947, Syaaia Prasad Mookerji had included tlie power to pardon
and to “commute or remit piiiiishmenf’ as one of the functions of the
President^ The granting of pardon was also listed in the .mc'iBoraiidiiiii,
on tne principles of the Union Constitution, prepared by Gopalaswami
Ayyangar and Alladi Krislinaswami Ayyaf,

The Union Constitution Committee recommended that the right of pardon
and the power to commute or to remit punishment imposed by any court
exercising criminal jurisdiction should be vested in. the President : a clause:-
was added providing that such power of commutation or remission might
also be conferred by law on, other authorities. This clause was considered
necessary because of, the provisions of the Criminal Procedure Code which
would continue in force even after the commencement of the new
Constitution''.

This recommendation of the Union Constitution Committee was considered
by the Assembly on July 31, 1947, when in order to preserve the power of
pardon and reprieve which at the time was vested in the Rulers of Indian
States, B. L. Mitter, Baroda’s representative, moved an amendment proposing
that the President’s power to remit or commute sentences should only be
exercised where they were passed by courts in the Provinces, and not in the
Indian States". Partly in order to respect the susceptibilities of Indian
States and partly to bring the position in accord with a truly federal structure,
N. Gopalaswami Ayyangar moved an amendment substituting the following
redraft :

The power to grant pardons, reprieves, respites, remissions, suspensions, or
commutations of punishment imposed by any court exercising criminal
jurisdiction shall be vested in the President in the case of convictions —

(i) for offences against federal laws relating to matters in respect of which
the Federal Parliament has, and the unit Legislature concerned has not,
the power to make laws ; and

(ii) for ail offences tried by Courts Martial.

Such power may also be conferred on other authorities by Federal law:
Provided that nothing in this sub-clause affects any power of any officer
in the Armed Forces of the Federation to suspend, remit or commute a
sentence passed by a Court Martial".

Explaining the object of these revised proposals, Gopalaswami Ayyangar
said that in practically all federations the power of pardon was divided
between the head of the federation and the heads of the units. The principle
on which this division was made was that the head of the federation had
the power to pardon offences against the federal laws and the head of a

^Select Documents II, 15(iii), p. 529,

^Memorandum, para. 6(1), Select Documents II, 15(vi), p. 542.

^Report, Select Documents II, 18(i), p. 580.

"C. v4.,De^., VoI. IV, pp. 1013-4.'

nbid., p. 1014. ' ■

370,

FRAMING OB INDIA’S CONSTITUTION

oiiil had the'power to' pardon' offences against the unit .laws. The amendment
soaght,. to divide o.ff€nces .into two categories; in respect of offences against
federal daws the President would have power to grant pardon; the .power
to ..grant, pardons, in .the case of offences against ordinary criminal law and
against laws .made by the 'Provincial Legislatures or Indian States would vest
in .'the heads , of the Pro'vinces or States. Anantliasayanam Ayyangar moved
an' :aniendine.iit .suggesting that the Pre-sident should have, .in addition, the
power of pardon in a.ll ' cases where a person was sentenced to death in a
Province, .His intention was that this power would be exercised concurrently
with the Governor’s power of pardon. If pardon, was granted by a Governor
the President would have no right to revoke it. But if pardon was not'
granted by the Governor, a person sentenced to death would have a chance
to go to the President. The Assembly accepted both the amendments moved
by Gopalaswami Ayyangar and Aiianthasayanam Ayyangarh
The provision included in the Draft Constitution as settled by the Drafting
Committee read :

59(1) The President shall have the power to grant pardons, reprieves, respites
or remissions of punishment or to suspend, remit or commute the sentence
of any person convicted of any offence —

(a) in all cases where the punishment or sentence is by a Court Martial;

(b) in all cases where the punishment or sentence is for an offence under
any law relating to a matter with respect to which Parliament has, and
the Legislature of the State in which the offence is committed has not,
power to make laws ;

■ (2) Nothing in sub-clause (a) of clause (1) of this article shall affect the
power conferred by law on any officer of the Armed Forces of India to
suspend, remit or commute a sentence passed by a Court Martial.

(3) Nothing in sub-clause (c) of clause (1) of this article shall affect the
power to suspend, remit or commute a sentence of death exercisable by the
' Governor or the Ruler of the State under any law for the time being in
force®.

Explaining the scheme embodied in the article Ambedkar said:

The power of commutation of sentence for offences enacted by the federal
iaw' is vested in the President of the Union. The power .to com, mute
’ sentences for offences enacted by the ’ State Legislatures is vested in the
Governors of the States. In the case of sentences ' of death, whether it is
'inflicted under any law passed by Parlia,ment or by the law of the States,
''the power Is vested in both, the President as well as the State conce^ned^
The only amendment moved was by Tajamul Husain who wanted that the

A. Deb., Vol. IV, pp. 1014-28.

^Draft' Constitution, Feb. 21, 1948, article 59, Select Documents III, 6, p. 536.

*C. A. Deb., Vol. VII, pp. 1 1 18-20.

THE PRESIDENT AND THE EXECUTIVE

371

powers vested in State Governors to exercise clemency in cases of sentences
of death should be removed. Tliis amendment was opposed by Ambedkar
who pointed out that the Governor, advised by his Home Minister, would
really be in a better position to decide on these matters of exercise of
clemency, since the State Home Minister would have more intimate
knowledge of the circumstances of the case and the situation prevailing in
the area. Ambedkar characterized the clemency power of the President as
a safeguard in cases where a condemned man’s mercy petition to the
Governor was rejected. The amendment was rejected and the article adopted
by the Assembly on December 29, 1948^

Consideration of the article was however reopened on September 17, 1949.
The article as passed by the Assembly did not give full effect to the scheme
expounded by Ambedkar, because of the condition in clause (b) that the
President would exercise clemency powers in all cases where the punishment
or sentence was for an offence under any law relating to a matter with respect
to which Parliament had, and the State Legislature did not have, power to
make laws. The clause would have meant that in respect of offences against
laws in the Concurrent Legislative List, where both Parliament and the State
Legislature had power to make laws, the powers of clemency would be
exercised by the Governor or Ruler of a State and not by the President. Now,
the plan of the Constitution in respect of the exercise of executive authority
in relation to matters in the Concurrent List was that such executive power
would remain with the State Governments, but the Union Government would
assume executive power where such assumption was provided for by any
federal law. It was felt that in matters where the Union Government
assumed executive power the powers of clemency should be exercised by the
President and not by the Governor or Ruler of a State. Accordingly,
T. T. Krishnamachari moved an amendment suggesting a redraft of the
clause :

(b) in all cases where the punishment or sentence is for an offence under
any law relating to a matter to which the executive power of the Union
e.xtends“.

This amendment was adopted by the Assembly without any discussion,
and the article as so adopted became, with verbal changes, article 72 of the
Constitution.

Council of Ministers {Articles 74 and 75)

The provisions regarding the Council of Ministers contained in the
Constitutional AdvisCT’s memorandum of May 30, 1947, were simple :
There shall be a Council of Ministers with the Prime Minister at the head

k:. A. Deb., Vol. VII, pp. 1118-20.
Vol. X, p. 389.

372

FRAMING, OF INDIA’S CONS.TITUTION

, to aid and advise the President in the exercise; of his functions except in so
far as he is required by this Constitution to act in his discretionh
■ At its meeti:ng of June 8, 1947, the Union Constitution Coromittee decided
that there should be no special responsibilities vested,, in the Presideiit, in
respect of which,, according to the memoraiidu,!n,, lie, was to act in, his
discretio,!! ; and that he would act on, the advice of the Council of Ministers
in such matters as dissolving the Lower House of the Federal Legislature
and appointing the members of the. Public Service Commission. .Thus, in the
e,x.er.cise of all his fiioctions the President would act on the advice of Ills
Ministry. This decision was confirmed at the meeting of the committee held
on June 9. The committee also decided that, as suggested by Alladi
Krisliiiaswami Ayyar and N. Gopalaswami Ayyangar, a provision on the
following lines should be made in the Constitution ,on the manner , of
appo,iiitment of the Ministers:

The President shall appoint the Prime Minister from among the members
of the Federal House of Representatives (the lower chamber of the Central
Legisiature) and in doing so will ordinarily invite the person who in his
judgment is likely to command the largest following in that House to accept
the office. The other Ministers of the Cabinet will be appointed by the
President on the advice of the Prime Minister^.

This decision did not find a place in the Report of the Union Constitution
Conimittee and the proposal in the report was a reproduction of the paragraph
from the Constitutional Adviser’s memorandum with the omission of the
words relating to the exercise of functions by the President in his discretion\
When the report came up for discussion in the Assembly on July 28, 1947,
N. Gopalaswami Ayyangar moved an amendment seeking to rectify this
emission. This amendment proposed that the Prime Minister would be
appointed by the President and the other Ministers by the President on the
advice of the Prime Minister ; and it added an important clause that the
Ministry would be collectively responsible to the House of the Peopleh
Gopalaswami Ayyangar explained that by convention the President would
appoint as Prime Minister the leader of the party which by itself or together
with the support of other groups in the House of the People would be able
to command -a fairly stable majority. The other Ministers would be chosen
on the advice of the Prime Minister. He also pointed out that the Ministry
would be collectively responsible to the Lower House or the House of the
People and not to Parliament as a whole. Dealing with a suggestion that
lliere should be both joint and several responsibility, he said that in the case
of a Government it was not necessary to copy the practice common in the
framing of ordinary private contracts between a board of directors of a

^Select Documents II, pp. 476-7.

^Minutes, Select Documents II, 16, pp. 555-7.

^Report, Select Documents U, 18(i), p. 580.

^C. Vol IV, p. 911.

THE PRESIDENT AND THE EXECUTIVE

373

company and other people. It would be sufficient if provision was made for
collective responsibility to the House of the People.

As already noticed, several amendments were moved proposing that the
Council of Ministers would be elected by Parliament by the method of
proportional representation ; and that the Ministers would have a fixed tenure
of office and not be removable by an adverse vote. All these suggestions were
negath'ed by the Assembly and the amendment moved by Gopalaswami
Ayyangar was eventually adopted^

In pursuance of these decisions, the Drafting Committee in the Draft
Constitution of February 1948 included two articles® relating to the Council
of Ministers. Draft article 61 provided for a Council of Ministers to “aid
and advise” the President in the exercise of his functions, but, adopting a
similar provision in the Government of India Act, 1935, it also laid down that
the question whether any and if so what advice was tendered by Ministers
to the President should not be enquired into in any court. Draft article 62
contained other provisions about Ministers. The Prime Minister was to be
appointed by the President and the other Ministers were to be appointed by
the President on the advice of the Prime Minister. They were to hold office
during the pleasure of the President ; they were to be collectively responsible
to the House of the People ; and every Minister was required to take the
oaths of office and secrecy before he entered upon his office. Provision was
also made that a Minister who for any period of six consecutive months
was not a member of either House of Parliament would cease to hold office
as Minister. The salaries and allowances of Ministers were to be determined
by Parliament by law, and, till so determined, were to be as set out in the
Second Schedule to the Draft Constitution®.

Tliere was considerable discussion both in the Minorities Sub-Committee
and in the Advisory Committee on Fundamental Rights, Minorities and
Tribal and Excluded Areas on the need for the inclusion of minority
representatives in the Union and State Cabinets ; there was also much
discussion on the manner in which minority communities would be given such
representation. Both the Minorities Sub-Committee and the Advisory
Committee rejected the proposals made for the reservation of seats in the
executive for minorities. They considered that it would be sufficient if,
foDowing the precedent furnished by the Government of India Act of 1935,
an Instrument of Instructions was drawn up, to be included as a schedule
to the Constitution, enjoining the Governors and the President as far as
practicable to include members of the important minority communities in
their Ministries*. In the Draft Constitution of February 1948, however, an

iC. A. Deb., Vol. IV, pp. 907-21.

^Select Documents III, 6, p. 537.

. mid., II, 10(0' and 12(0, pp. 398, 415. ■ _

374

FRAMING OF INDIANS CONSTITUTION

Instrument of lostructions for 'this purpose was drawn up only for Governors
but not for the President. Possibly in order to rectify this omission, the
Drafting Committee decided, on further consideration of the articles relating
to the Council of Ministers, that an Instrument of Instructions for the
President would also be necessary.

In October 1948, the committee gave notice of an amendment to article 62
proposing to add a new clause :

In the choice of his Ministers and the exercise of his other . functions under
this Constitution, the President shall be generally guided by the instructions
set out In Schedule III-A, but the validity of anything done by the President
shall not be called in question on the ground that it was done otherwise
than in accordance with such instructions'.

The latter part of the clause was borrowed from the Government of India
Act, 1935, and embodied the intenticm of the Drafting Committee that the
relations between the President and his Ministers should in no circumstances
be a matter, which could be taken to the courts.

The draft of the instructions prepared by the Drafting: Committee and
circulated was much more elaborate than the corresponding instructions for
Governors ; and it provided for various matters besides the representation of
minorities in ' the Central Cabinetl On this particular issue the Instrument
directed the President, in constituting his Council of Ministers,, to

appoint a person who has been found by him to be most likely to command
a stable majority in Parliament as the Prime Minister : and then to appoint
00 the advice- of the Prime Minister those persons, (including so far as
practicable members of important minority communities) who will best be
in a position collectively to command the confidence of Parliament®,

The Instrument of Instructions also contained detailed provisions on certain
other administrative matters, on lines reminiscent of the Council of State
suggested earlier by the Constitutional Adviser in his memorandum of May
30, 1947. It directed the President to set up an Advisory Board consisting
of not less than fifteen members of the Houses of Parliament to be elected
by both Houses by the method of proportional representation by means of
the single transferable vote. This Board, which would include the leader of
the Opposition in either House of Parliament, was to advise the President
on the making of certain appointments. The Instrument listed six, categories
of appointments in regard to which the President was required to consult
the Board:

(a) the Chief Justice and other judges of the Supreme Court;,

(b) the Chief Justice and other judges of High Courts ; ,

A, Bek. Vol. VII, p. 1167.

Comments and Suggestions on the Draft Constitution, Select Documents JV, \{\%
pp. S4-6.'

^According to article 62, the Council of Ministers was to be responsible to ' the
House of the People, not to Parliament as a whole.

THE PRESIDENT AND THE EXECUTIVE

375

(d) the Auditor-General of India;

(e) the Chairman and other members of the Union Public Service
Commission ;

(f) any member of a commission to superintend, direct and control all
elections to Parliament and elections to the offices of President and
Vice-President

Tlie Instrument further required the President to consult the Board on any
other appointment (other than that of the Governor of a State) if required
to do so by resolutions passed by both Houses of Parliament. It also
prescribed in detail the procedure to be followed by the President in making
appointments of judges of the Supreme paurt and High Courts. There was
a further instruction that where the recommendations of the Advisory Board
were not accepted a report should be made to Parliament together with a
memorandum explaining the reasons for the non-acceptance of the Board’s
recommendation^

Draft article 61 came up for discussion before the Constituent Assembly
on December 30, 1948. Mahboob Ali Baig was unsuccessful with an

amendment reviving his old proposal, already negatived by the Assembly,
that the Council of Ministers should consist of fifteen members elected by
the elected members of both Houses of Parliament from among themselves in
accordance with the system of proportional representation.

K. T. Shah moved a number of amendments. He wanted no formal
creation of the office of the Prime Minister ; every Minister newly appointed
should be required to subject himself to a vote of confidence in the House
of the People ; not less than two-thirds of the members of the Council of
Ministers should be members of the House of the People and not more than
one-third from the Council of States ; Ministers could have Deputy Ministers
and Parliamentary Secretaries to assist them; no one could be appointed to
ministerial office if he had been convicted of treason or any other offence
against the State or any other criminal offence involving moral turpitude for
which he was liable to a sentence of two years’ imprisonment ; every Minister
should declare his ownership or interest in any business or property and divest
himself of the same.

Replying to these amendments, Ambedkar expressed his inability to accept
any of them. Referring to Mahboob Ali Baig’s amendment that Ministers
should be elected by the method of proportional representation, he presumed
that the purpose of this proposal was possibly to enable minorities to secure
representation in the Cabinet. But while there was nothing unworthy in such
an aim. Ambedkar pointed out that this purpose could be better achieved
by the Instrument of Instructions suggested by the Drafting Committee which

’Comments and Suggestions on the Draft Constitution, Select Documents IV, l(i),

pp. S4“6. ■

376

FIAMLNG OF INDIA’S CONSTITUTION

directed the President to include in the Cabinet members of the minority
communities as far as practicable.

Dealing with the amendment moved by K. T.' Shah that there should not
be a formal office of Prime Minister, Ambedkar maintained that the only
sanction through which collective respoiisibihty could be enforced was through
the Prime Minister. Collective responsibility would require the enforcement
of two principles, that no person would be nominated to the Cabinet except
on the advice of the Prime Minister, and that no person should be retained
as a Minister if the Prime Minister .wished him' to be dismissed. It was
therefore essential to have a Prime Minister : he would be the key-stone
of the arch of the Cabinet :

Unless and until we create that office and endow that office with statutory
authority to nominate and dismiss Ministers there can be no collective res-
ponsibiiityh

Ambedkar also dealt with the other points raised by Shah — ^that a Minister
should on appointment seek a vote cl confidence and that no person convicted
of treason or other offences should be appointed Minister. On the first point
Ambedkar pointed out that in Great Britain they had given up the practice,
adopted during the early history of the British Cabinet, that every person
appointed as a Minister would be required to resign liis seat in Parliament
and seek re-election. He considered provisions of this kind to be quite
unnecessary, because if the Prime Minister did happen to appoint a Minister
who was not worthy of the post, it would be possible for Parliament to pass
a vote of no-confidence either in the Minister or in tlie whole Ministry^ and
thereby get rid of the Prime Minister himself or the Minister in whom it
"had no confidence. On the second point Ambedkar remarked that' the proper
course would be to trust the Prime Minister, with the Legislature and the
general public watching him, to see that such infamous things as the
appointment of convicted persons as Ministers did not take place.

Ambedkar also made it clear in the course of the debate that the intention
of the Drafting Committee was that the appointment of the Prime Minister
should be a matter resting on the discretion of the -President. ■ He said on
December 30, 1948: ■ ■

With regard to the Prime Mhiister it is not possible,. to. avoid vesting the
discretion, in the President. The only other way by which we could provide
for the appointment of the Prime Minister without vesting the authority
or the discretion in the President, is to require that it is the House which
shall in the first instance choose its leader, and then on the choice being
made by a motion or a resolution, the President should proceed to appoint
the, Prime Minister.

Mohd. Tahir : On a point of order, how will it explain the position
of the Governors and the Ministers of the State where discretionary

'C. A. Dek, Vol. VI!, pp. 1141-60.

THE PRESIDENT AND THE EXECUTIVE

377

powers have been allowed to be used by the Governors ?

B. R. Ambedkar : The position of the Governor is exactly the same as the
position of the President, and I think I need not over-elaborate that at the
present moment, because we will consider the whole position wlien we deal
with the State Legislatures and the Governors. Therefore, in regard to the
Prime Minister, the other thing is to allow the House to select the leader,
but it seems that that is quite unnecessary. Supposing the President made
the choice of a wrong person either because he had not what is required,
namely, a stable majority in the House, or because he was persona non grata
with the House : the remedy lies with the House itself, because the moment
the Prime Minister is appointed by the President, it would be possible for
the House or any member of the House, or a party which is opposed to the
appointment of that particular individual, to table a motion of no-confidence
in him and get rid of him altogether if that is the wish of the House.
Therefore, one way is as good as the other and it is therefore felt desirable
to leave this matter in the discretion of the Presidenth
The amendments were negatived by the Assembly and article 61 was
adopted.

Amendments were also moved to draft article 62. Ambedkar himself
moved one introducing the Instrument of Instructions^ Syed Karimuddiii
moved an amendment suggesting that no member of the Cabinet could be
removed except by impeachmenf . Pocker Sahib wanted the inclusion of a
specific clause that Ministers would hold oiffice only for so long as they
enjoyed the confidence of the House of the People*. Mohammad Tahir
wanted to prevent the appointment as a Minister of any one who was not
actually a member of either House of Parliament. K. T. Shah reiterated
his suggestion that Ministers should make a declaration of their assets and
take such other step as they might be required to do by Parliament®. He also
moved an amendment proposing that the President, Governors, all Ministers
ill the Union and the States, all the judges of the Supreme Court and of the
High Courts, should be able to read and write English ; they should learn to
read and write' and express themselves in the national language within ten
years; they should not "have been found' guilty ■ of any offence against the
State or any offence involving moral turpitude ; and they should have had
a record of public service or otherwise have proved tlieir fitness, capacity
and suitability, for such election or appointment in such manner as might be
laid down by Parliament by law\ Ambedkar, on behalf .of the Drafting

^C. A. Deb.. Vol. VIL p. 1158.

P.T167..
p. im.
nbid.. p. 1168.

p. 1172.

Hbid,,p, 1175.
nbid., p. 1178.'

378

FRAMING OF INDIA’S CONSTITUTION

Committee, found himself unable to accept any of these amendments. On
the question of removal from office, he said that under the article as framed
by the Drafting Committee, a Minister held office during the pleasure of the
President : this meant that he would be liable to removal on two grounds —
when he lost the confidence of the House of the People and also when his
administration was not pure. Regarding the suggestion made by Shah
that the President, Ministers and other high dignitaries should fulfil
educational and other qualifications, he confined himself to the case of
Ministers; it was inconceivable tliat a Prime Minister would be so “stupid”
as to appoint a Minister who did not understand the official language of the
country and while it was desirable to bear in mind that persons who held
a portfolio in the Government should have proper educational qualifications,
it was unnecessary to provide for it in the Constitution. Dealing with the
suggestion that all persons appointed as Ministers should make a declaration
of their assets, Ambedkar conceded that it was a laudable object to maintain
the purity of administration ; but it was not enough that Ministers should
be required to declare their assets and liabilities at the time of entering
office. It would be necessary for them to make a similar declaration when
they resigned; and there should be a third provision to compel a Minister
to explain abnormal increases in his assets. A mere declaration at the
initial stage was “good for nothing”. In view of these complications,
Ambedkar thought that a much better sanction would be to mobilize public
opinion and focus it in the Legislature*.

Ambedkar’s amendment adding a clause providing for an Instrument of
Instructions to guide the President in the exercise of his functions was adopted
by the Assembly but the other amendments were negativedL Naziruddin
Ahmad moved an amendment which had for its object the omission of that
portion of the clause which laid down that the validity of anything done
by the President could not be called in question on the ground that it was
done “otherwise than in accordance with such instructions”. The main point
made by Naziruddin Ahmad was that the President being a constitutional
head, he would be acting unconstitutionally if in any matter he disregarded
the advice tendered by his Ministers. The words he objected to would
prohibit an unconstitutional act of a President being called in question in
any forum — ^in a court or in a Legislature or anywhere else.

The sanctity of the Constitution would thus be seriously impaired, its
authority seriously undermined, if a perfectly unconstitutional act is shut
out from any kind of discussion or question under the latter part of this
clause’.

Ambedkar opposed the amendment; but he seems to have recognized the

*C. A. Deb., Vol. VII, pp. 1185-8.

"-Ibid., p. 1189.

■’/foW., p. 1168.

THE , PRESIDENT AND THE EXECUTIVE

379

iinporta-Bce, of the proposed instructions ' as ^ providing,, guidelines governing
the . Presidenfs actions. .While opposing the introduction of any possibility
of jiidiciai interventioii, he' thought that Parliament could more appropriately
ensure that the President acted always in a constitutional manner. ' He said :
How are we going to .enforce the injunctions which will be .contained in the
Instrument of Instructions? There are two ways o.pen. One way is to perm.it
the court to enquire and adjudicate upon the validity of the thing. The
other is to leave 'the matter to the Legislature itself and to see whether by a
■ censure motion or a motion of no-confidence it cannot compel the Ministry
to give proper advice to the President and impeachment to see that the
President follows that advice given by the Ministry. In my judgment the
latter Is the better way of effecting our purposeh
. In the debates on other articles also,. Ambedkar recognized the importance
of these instnictioos. He stressed this point when he said that the method
envisaged ,in the Instrument for the representation of minorities in the Council
of Ministers was superior to the proposal for election of the Council by
proportional representation. The issue was more specifically dealt with in
connection with the President’s power to promulgate Ordinances. On the
initiative of Hukam Singh, a strong view was expressed that the Constitution
should itself make it clear beyond doubt that the President in promulgating
Ordinances would act only on the advice of his Ministers. Ambedkar
admitted the force of this suggestion and pointed out that the Instrument of
Instructions proposed would safeguard it: and he agreed, on the suggestion
of the President of the Assembly, that, if there was any difficulty, the
Drafting Committee would remedy it by suitable amendmentsl
On October 11, 1949, however, whdn the new Schedule III-A containing
the Instrument of Instructions was due to be considered by the Assembly,
T. T. Krishnamachari expressed the desire of the Drafting Committee that the
proposal for the inclusion in the Constitution of the Instrument of
fnstructioiis to the President should be dropped ; he also moved that a
similar Instrument, already included in the Draft Constitution for Governors
as the Fourth Schedule, should be omitted. Three days later, he moved a
consequential amendment deleting clause (5-a) of article 62 which had laid
down that the President would in the exercise of his functions follow the
directions contained in the Instrumenf. H. V. Kamath pointed out that
Ambedkar. had already agreed to insert a provision in the Constitution
to make it clear that the President would always act on the advice of Ms
Ministers. Ambedkar did not deal with this specific point; he dealt with
the subject in its broad general aspect. His main ■ argument was that no
constitutional government could function in any country unless any particular

1C. A. Dek, Vol. VII, p. 1189.

Vol. VIII, pp. ' 209, 215-6.
mid,, VoL X, pp. 114-6, 268-71.

380

FRAMING OF INDIA’S CONSTITUTION

constitutional authority remembered the fact that its authority was limited by
the Constitution.. That, he said, was the sanction which the Co.iistitiitioii
gave in order to see that the President followed, the advice of his Ministers.
Alladi Krislioaswami Ayyar was more pos.itive : It was provided in the
Constitution, lie said, that the Council of Ministers would be coMectively
responsible to The House of the People. If a President stood in the way of
the Council of Ministers disciiarg.!ng that responsibility, he would, be guilty
of violation of the Constitution and would even be liable for impeaclimeiit.
It was, therefore, merely a euphemistic way of saying that the President had
to be guided by the advice of his Ministers. The Council of Ministers was
collectively responsible to the House of the People, ansv/erable to the House
in. regard to the budget, all legislation and indeed for every matter' connected
with the administration of the country. There was therefore no necessity for
setting out in detail in an article of the Constitution what the functions and
incidence of responsible government would beh This ' view was accepted
and the proposal to omit the Instrument of Instructions and the connected
clause was approved by the Constituent Assembly.

NOTE ON AMENDMENTS

Article 58: The Co.nstitution (Seventh Amendment) Act, 1956, inter alia
made amendments of far-reaching importance to article ' I and the First
Schedule. Instead of four categories of territory comprising the Union of
India — Part A States with Governors at the head. Part B States with
RajpramuMis, Part C States with Lieutenant-Governors or Chief
Co.mmissioners, and the Part D territory of 'Andaman and Nicobar Islands. —
the territories of India were now described as comprising the ‘"States” and
the '""Union territories”. One consequence of this change was that all States
had Governors at the head, and the institution of ""Rajpramuklis” in Part B
States ceased to exist. As a consequence the words ""Rajpramukhi or
Uprajpramiikh” in article 58 were deleted. Th.is amendment came into force
on November 1, 1956. The term “Rajpramukh” was also deleted from , other
articles of the Constitution— 66, 72, 151(2), 267(2), 283(2), 299(2), 309, 310,
311, 315(4), 316(1) and (2), 317(2), 318, 320(3), 320(5), 323(2), 324(6), 333,
341(1), 342(1), 348, 356, 361 a,nd 367.

The following other consequential changes w^ere also enacted :

(i) All specific references to “States in Part A of the First Schedule” and
.“States in Part B of the First Schedule” w^ere omitted. Ail these were
now described as “States”.

,(|i) All territories formerly described as “States in Part C.of the .First
Schedule” and “the territories included in Part D of the First Schedule”
were now described as “Union territories”.

A, Deb., Vol. X, p. 270.

THE PRESIDENT AND TEIE EXECUTIVE

381

Ariide 66 : The CoiistitiitiO'ii (Eieventh. Amendmeiit) Act, 1961, anieiidsd
tills article by providing that the Vice-President would be elected by
‘“'■meinbers of an electoral college consisting of members of both Houses of
Parliarnenf® instead of by the “members of both Houses of Parliameii,t
assembled at a joint meeting”. This amendment came into force on December
19. 1961.

Ankle 71: The Constitution (Eleventh Amendment) Act, 1961, added a
new clause (4) to the effect that the election of a person as President or
Vice-President could not be called in. question on the ground of the existence
of any vacancy for whatever reason among the members of the , electoral
college electing him.

THE GOVERNOR AND THE STATE EXECUTIVE

The memorakdUaM on the principles of a Provincial Constitution prepared
and . circulated by the Constitutional Adviser on May 30, 1947,

set out the general constitutional framework for the Provincesh This, it
may be recalled, was a few days before the publication -of- the British
Government’s statement of June 3 which eventually led to the partition
of India. Political opinion in India had always been in, favour of a strong
Central Government which, in the words of the Congress Working Committee,
w^ould command respect from the nations of the world; and the Congress
had from the beginning realized that the proposals of the Cabinet Mission
contained limitations which would seriously weaken the whole structure
of the Government. Nevertheless the Congress, recognizing also that the
Muslim League’s demand for Pakistan if conceded would have serious
adverse consequences and gravely affect the economy and welfare of the
people and the ability of the country to defend itself from external threats,
accepted these proposals in the hope that the final break would somehow
be averted. It was also hoped that

taking the proposals as a whole there was sufficient scope for enlarging
and strengthening the central autho.rity\

All these expectations were disappointed by the course of events, and
when the partition of India was finally announced through the British
Government’s statement of June 3, 1947, the reaction of Indian leaders was
immediately and unanimously in favour of a strong Central Government.
Munshi said ;

We have now a homogeneous country though our frontiers have shrunk —
let us hope only for the moment — ^and we can look forward to going on
unhesitatingly towards our cherished goal of strength and independence^

The position at the time the memorandum was circulated by the
Constitutional Adviser was that the general conditions and restrictions
contained in the Cabinet Mission’s plan of May 16, 1946, held good as the
basis of the constitution-making effort; the Provinces were to have a large
measure of autonomy, all subjects other than foreign affairs, defence and
communications, being vested in them, as well as all residuary powers.

As in the case of the Centre, the form of government provided in the
memorandum for the Provinces was, in the main, the parliamentary type in

^Select Documents

^Congress Resolution, June 25, 1946, Select Documents I, 58, p. 279.

X DeK Vol. XV, p. 545.

382, .

THE GOVERNOR AND THE STATE EXECUTIVE

383 :.

wliich adinmistratioii would ordinarily be in the hands of a Comicii.of
Ministers responsible to the Legislature. In the language of the Go'ver,iiiBeiit
of Iii.dia Acts 1935s the Governor would be ^'aided and advised'^ by liis
Ministers. But the memoraiidum also suggested that certain special powe,rs
should be vested personally in 'the Governor, in the exe,rcise of which he
could overrule his Ministers or act independently of them. Thus, ''special
responsibilities'’ were proposed to be conferred on him for the prevention
of grave iiie,iiace to the peace and tranquillity of the Province .or of .any
part of the Province and. for the safeguarding of the legitimate- interests of
the m.inorities. The' possibility of including in the scope of these special
responsibilities the administration of excluded and partially excluded areas
was not ruled out; but this matter wa.s to be decided after the Advisory,
Committee, had formulated a scheme for the administration of such areas.
In so far as a special responsibility was concerned, the memorandum proposed
that the Governor should act in Ms discretion. Apart from, these special
responsibilities, the superinlendence, direction an.d control of elections,
including the appointment of election tribunals, were also to be vested in the
Governor acting in Ms discretion, but subject to the approval of a body to be
designated the Council of Stated

As in the case of the Centre, the Constitutional Adviser foresaw difficulties
'with a Provincial Ministry ' in the exercise of these discretionary fun:ctions.
He observed that it wa-s possible that if the Govenior were to act against
the advice of his Ministry, the Ministry might resign, resulting in, the inability
of the Governor to find an alternative Ministry. In such an eventuality, the
Governor would normally accept the advice of the Ministry in preference
to his own jiidgiiie.iit, though in ' an extreme case he might dissolve the
Legislature. If the new Legislature endorsed the G 0 veriio.r’s view of, the
situation and returned a different party to power, his action, would have
:Ju.stified itself. If, however, it returned the same party to power, the
Governor w,ould have no option but to act in accordance with the advice
of Ms former Ministers. The discretionary power would at least have
the effect of bringing the issue before the electorate.

With this constitutional set-up in . view, the memorandum ■ provided that
the Governor would be elected by the Provincial Legislature by secret ballot
according to .the system of . proportional representation by means of ■ the^
single transferable vote. In' making this suggestion the Constitutional"
Adviser comniented that in a unitary constitution— and ■ even in 'a federal'
constitution approximating to the unitary type: like that of Canada— Provincial
Governors could be appointed by the Central Government. Under the Cabinet

^The ,Councii of ' State^ w coiis,ist of. a ■liiiiBber of eminent' persons tO' forni'
a Privy Council which could be consulted on various matters such as ' eieetions,
appomtment of judges and so on. The idea , of such a Council was, however, not
adopted by the Union Constitution Com.mittee. See Chapter ^ on the President and
the Union. Executive.. ■

384

FRAMING OF INDIA’S CONSTITUTION

Mission’s plan of May 16 , 1946, the Union Government in India would not
have this power; and some other method of selecting Governors would have
to be . adopted. The two alternative courses considered by him, were direct
election by the people of the Province and some system of indirect election.
As the Governors were intended for the most part to be responsible heads
acting on the advice of their Ministers, it was considered unnecessary to
have direct .election with all its complications. This was the reason under-
lying the proposal of election by the Legislature for Provincial Governors
as for the President.

The memorandum also^ suggested that the Governor might hold office
norniaily for a period of five years : that he could be removed for
misbehaviour or infirmity of mind or body by a resolution, of the Provincial
Legislature supported by a vote of not less than two-thirds of its total
membership : and that he would be eligible for re-election once.

No provision was suggested for fiHing a casual vacancy in the office of
Governor. The majority of replies received from members of the Provincial
Constitution Committee, the Constitutional Adviser said, had favoured
the creation of the post of a Deputy Governor, elected in the same manner
as the Governor, who would take his place in the event of a casual vacancy.
Tlie Constitutional Adviser suggested, however, that under a parliamentar}'
type of executive, there was hardly any room for a Deputy Governor who
could be given no regular functions. Where the Legislature was bicameral
he could be made ex-officio Chai.rman of the upper chamber in the same
manner as the Vice-President of the United States of America was the
Chairman of t,he Senate. Most of the replies received were hO'wever opposed
to the creation of an upper chamber for the Provinces. The Deputy
Governor would be .left under such circumstances with no normal functions.
In the light of these considerations the Constitutional Adviser suggested
that there need be no provision for a Deputy Gove,rnor for the Provinces;
and he included a proposal authorizing the Council of State at the Centre,
by a majority of its members, to make such arrangements as it might think
fit for the discharge of the functions of the Governor in the event of a casual
vacancy or other unforeseen contingency.

Til defining the extent of executive power, the memorandum proposed that
the executive authority of a Province should extend to matters with respect
to which the Legislature of the Province had power to make laws. The
wo.rdiag of the clause was :

Subject to the provisions of this .Constitution and of any special agreement
the executive authority of each Province shall extend to the matters with

Elaborating the reference to the use of the term ‘‘special agreement”, the
respect to which the Legislature of the P,rovince has power tO' make. lawsh
Constitutional Adviser envisaged the possibility of Indian' ' States or groups

^Select Documents If, 21(ii), p. 63.

THE GOVERNOR AND THE STATE EXECUTIVE

385

of liidian. States desiring to have a common administration with a
neighbouring Province in certain specified matters of common interest. Put
in. more simple terms, the position was that there were quite a la.rge miniber
of small States spread over India which might find it difficult to provide
adequate or efficient macliinery for the exercise of certain administrative
or judicial functions. In the interests of economy and efficiency it might
become proper that the neighbouring Provinces should be given the necessary
authority ■ to undertake the discharge of these functions. In such cases the
Rulers concerned might, by , a special agreement, cede the neces.sai:y
jurisdiction to the Province. This would not interfere with the accession
of the Slate or States concerned to the Federation, because the accession
would be in respect of federal subjects, whereas the cession of jurisdiction
contemplated here would be in the provincial field.

The memorandum contemplated a Council of Ministers to "‘aid and advise”’
the Governor, in so far as fimctions were not assigned to him in his
discretion; the appointment and dismissal of Ministers and the determination
of their salaries were functions to be performed by the Governor in his
discretion, and the relations between the Governor and his Ministers were
ito be, as nearly as possible, the same as those between the King and his
Ministers in the United Kingdom. Though the general pattern for the
Provincial executive set out in the memorandum contemplated a Ministry
functioning according to the parliamentary tradition of the United Kingdom,
it was thought that some of the Provinces might prefer a somewhat different
and possibly more stable administrative structure. To provide for this, the
Constitutional Adviser suggested that if the Governor in any particular
Province considered such a course appropriate, his Ministers could be
elected by the Provincial Legislature (or if the Legislature was bicameral,
by the lower chamber) on the basis of proportional representation by means
of the single transferable vote. In Provinces where Ministers were sO' elected,
their normal term of office would be the same as that of the Provincial
Legislature : they would continue in office until the election or appointment
of their successors so that there might be no administrative vacuum at any
time. No Minister elected' in this manner could be removed from office
during his' normal term except by a decision of the Legislature supported
fay , not less than ' two-thirds ■ of its total membership.

■ The memorandum was discussed by the Provincial Constitution Committee
at its meetings held on June 6, June 8 and June 9, 1947^ As already
mentioned ' a fundamental change in the Indian political situation had
meanwhile' arisen as a result of the British. Government’s statement of June 3 :■
its' two main new features were, first, that the partition ' of , India;, became

a certainty, though. the procedure laid down for deciding on the' issue of

partition had still to be gone through: the second important factor was

^Select Documents II, 22, pp. 646-51.

386

FRAMING, Of INDIA’S CONSTITUTION

that ,a,l.i restrictions and: limitations on the authority of. the Constituent
Assembly would disappear with independence on August 15.. Thereafter
the siipreniacy. of the .Constituent Assembly could no longer be trammeiled
by .any requirement .of sii.bseque.nt ratification by the British Parliament^

At the .meeting of the Provincial Constitution Committee held on June 6.
divergent views were expressed about' the functions of the Governor of a
Province and the mode of Ms appointmentl Some members suggested that
the Go.vernor should, as in , the United States, have complete executive
authority in a Province, with a Cabinet nominated by him which would
be . answerable to him and not to the Legislature; and that he should be
elected by the people on a system of adult franchise. So.me others suggested
that the Governor should, be a constitution,al head acting on the advice of a
Prime Minister who would be responsible to the Legislature and . that he
should ■ be. ,appo:inted through . a process of indirect election.. Yet ' Other
members,, suggested that the Central Government should have .a wide range'
of.."autho.rity over the Provinces and that the Governor, in, order that he
might ^ function as a liaison between the Central Govem.me,nt and the
Provincial executive, should be nominated by the Central Government. It
was ,fin.a.11y agreed that the primary question to be co,iisidered was whether
in the new circumstances created by partition India should be a unitary
State, with Provinces functioning as agents and delegates of the Central
authority., or a federation of autonomous units ceding certa:iii specified powers
to ..the Centre.

At, a joint meeting of the Provincial Constitution Com.mittee and the Union
Constitution. Comiii,ittee on June 7, 1947, it was decided that the CO'iistitution
of India should be a federal structure with a stro.ng, Centrel So far as
Governors were concerned, the meeting ■ decided that they, should not be
appointed by the Central... Government but chosen by the , Provinces; that
the Provincial executive shO'Uid be of the parliame,ntary cabinet type with
such suitable modifications .as might be considered necessaiy in the light
■of Indian co,nditions; and that the Governors should be ap|X>inted ' by .indirect
election on .the basis, of adult franchise through a." special electoral college.

■ The Provincial Constitution Committee proceeded to discuss the provisions
of ' the m,e.!iiora.iidum .of the Constitutional Adviser in the light of this decision,
and .made some changes in the recommendations " contained in it about the
Govenior''.and the State ' executive. At'its meeting held on June 8, 1947, a
minimum.' age of 35 was accepted for -candidates for Governorship, ■ A
proposal .for the appointment of. a Deputy Governor did not find favour
witliThe committee,:: it decided' that temporary vacancies not exceeding. four
months in the office of the Governor should : be ;fil,led .by appointment, by
the President of the Union. ’ Where the vacancy was of longer duration, a

'^Select Documents I, 85.(i), p. 526.

^Minutes, Ibid., II, 22, pp. 646-7.

^Minutes, Ibid., II, 19, pp. 608-9.

THE GOVERNOR AND THE STATE EXECUTIVE

387

new election sliould take place for another full term. This mattei* was
reopened .on June 11, and the committee decided that casual vacancies in
the office of the Governor should be filled by election by the Provincial
Legislature by a vote of the absolute majority of its members and that the
person so elected. should hold office for the remainder of his predecessor’s term
The suggestion made . by , the .Constitutional Ad.viser giving an option, to
the Governor to have Ms Council of Ministers elected by the Legislature
was not accepted by the committee and it was agreed that the norniai
parliamentary procedure should invariably be followed in all units in
appointing Millisters^

The committee agreed that the Governor should have a special responsibility
for the prevention of a grave menace to the peace and. tranquility of the
Province or of any part of the Province but was not convinced that at that
stage it. would be necessary to confer on the Governor a special responsibility
for safeguarding the legitimate interests of minorities. On ■ this' issue it
decided to await the recommendations of the Advisory Committee which
had been set up to consider the minorities probleml
The question of the electoral college to be set up to elect the Governor
was considered by the committee at its meeting on June 9. A sub-committee
consisti.ng of B. G. Kher, K. N. Katju and P. Subbarayan was requested to
consider the question of the constitution of an appropriate electoral college
and submit a report. This sub-committee, meeting on June 10, recommended
that the members of the electoral college should be elected by territorial
constituencies at the time of each general election on the' scale of one elector
for every 10,000 adults. The electoral colege would continue until a
.new college was constituted at the next general election and vacancies during
this period would be filled by the college. All election disputes relating
to the election of the Governor would be referred to and decided by the
Supreme Courtl- The proposal for an electoral college of this description
was, however, not accepted by the' Provincial. Constitution. Committee, and
the committee decided on June 11, 1947 to recommend that the Governor
should be elected directly by the. .i^ople on the basis of adult suffrage : and
that the duration of his office would accordingly synchronize with the . life
of the Legislature, namely, four years, so that the election of the Governor
would, as far as possible,..- be simultaneous with that of members of the
Provincial Lower •House\ .■ Provision was also made for the impeachment
of the Governor :

The Governor may be removed from office, for stated misbeh,aviour by
' ■ ' tiiipeachment, the charge to be preferred by the Provincial Legislature, or
where the Legislalure is bicameral, by the Lower House of the Provincial

■^Minutes, Select Documents 11, 22, pp. ' 648-9, -SS.LS. '

“Minutes, June 8, 1947, JAr‘d.., II, 22, p. 649.

^Minutes of Sub-Gommittee 'I, Ibid., II, 23(i), pp. . 654-5. ^ ■

^Minutes., JbiU, II., ---■22,

38.8

FRAMING OF INDIA’S CONSTITUTION

■ , Legislature, and to, be tried by the Upper House of the Federal ParliameEL

the resolution in each, case to be supported by not less than two-thirds, of the

total m.embersh.ip of the House concerned.

These proposals were incorporated in the committee’s report on the
principles of a model Provincial Constitution^ : and were placed for discussion
before .the Constituent .Assembly on July 15, 1947. Vallabhbhai Patel
explained the salient features of the report and referred in. particular
to the position and powers of the Governor vis-a-vis his Ministers. ' The
cominittee had recommended that in the appointment of his Ministers and
his relations with them the Governor would be generally guided by the
conventions' that develop with responsible government ; these were to be
explicitly set out in a schedule to the Constitution, replacing the Instrument
of Instructions issued by the Crown under the 1935 Act. But these conventions
of responsible government were not to be followed in their entirety : it was
provided that the Governor would “act in his discretion” in the following
matters :

(1) the prevention of any grave menace to the peace and tranquillity of
the Province or any part thereof;

(2) the summoning and dissolving of the Provincial Legislature;

(3) the superintendence, direction and control of elections;

(4) the appointment of the Chairman- and members of the Public Service
Corn-mission a.nd the Provincial Auditor-General.

The special powers of the Governors and the Governor-General, were a
ve^iy ' unpopular feature of the Government of India Act, 1935, as they
constituted a substantial diminution of ininisterial responsibility and a
corresponding encroachment On the powders of the Legislature. Patel was
naturally aware of popular feeling on this issue and took a great deal of
trouble to assure the Assembly that there would in fact be no invasion
of the field of ministerial responsibility. Referring to the special responsibility
of the Governor for peace and tranquillity, he explained that it was not
the intention of the committee to vest in the Governor any special powers
in a situation involving a grave menace to the peace and tranquillity of
a Province, as such a course might bring about a conflict between the
Governor and his Ministers. The Governor having no control over the
services., the authority over administration devolved entirely on the Ministry
and in the committee’s view the proper course would be to limit his powers
to the extent of authorizing him to report to the President of the
Union^.

Dealing with the other special powers of the Governors, Patel explained

^Select Documents 11, 24(i), p. 657.

"a. A. Deb,. Vol IV, pp. 579-80.

It is interesting to recall that -after this explanation Munshi’s amendment, which
was adopted by the Assembly, provided for the Governor taking over the
administration for a period of two weeks. See Chapter on Emergency Provisions.

THE GOVERNOR .AND THE STATE EXEC0TIVE 389

that the summoniiig and dissolutioii of the Provincial Legislature was not
in any way a special power; that so far as the superintendence; direction
and control of elections were concerned, these functions would be, i'n
pursiiacce of the recommendatioii of the Union Constitution Committee;
exercised by , a" commission appointed by the President of the Union ; and
that in regard to the appointment of the Chairman and meinbers of, the
Public , Service Commission and the Provincial Auditor-GeneraL such
appointment w^ould be made on the recommendation of the Cabinet or
Ministry.

Patel summed up his analysis of the special powers with the conclusion
that practically the only powers left to the Provincial Governor would -be
the power to report to the Union President when a grave emergency arose
threatening menace to peace and tranquillity, and the power to summon
and dissolve the Provincial Legislature.

The proposals of the Provincial Constitution Committee in regard to the
State executive were generally accepted by the Assembly but there were a
few changes of some substance. Govind Ballabh Pant moved an amendment
on July 16, 1947, proposing that for every Province there would be a Deputy
Governor elected after every general election by the Provincial Legislature on
the system of proportional representation by means of the single transferable
vote. The Deputy Governor was to fill a casual vacancy in the office of
Governor for the remainder of his term of office. He was also to act for
the Governor in his absence'. In commending this amendment. Pant
suggested that the nomination of an officiating Governor by the President
would be an “embarrassing duty” and repugnant to the principle of provincial
autonomy. The amendment was adopted.

There was a considerable amount of discussion on the provision proposed
by the committee that “subject to the provisions of this Constitution and
any special agreement”, the executive- authority of each Province would
extend to matters with respect to which the Provincial Legislature had' power
to make laws. The use of the phrase “any special agreement” was criticized
by several prominent members, the point of the criticism being that no
Province should have any power except those conferred by the Constitution
itself. Any special agreement enabling a Province tO' exercise any jurisdiction
or authority outside its tenitO'iy would affect external relations and' would
therefore be a matter for Central intervention. Alladi Krishnaswami Ayyar
explained this in some detail on July 16, 1947: it would not be proper to
^ carte Mancfm to a Province to come to agreements with Indian States,
and such extra-provincial relations -should be subject to control and regulation
by the Central Govemmentl This legal issue was remitted to a committee
consisting of Alladi Krishnaswami Ayyar, Ambedkar, K. M; Munshi,

A. Deb., Vo!.,I¥, p. 612.
p. 62Z. : :

390,

FRAMING OF INDIA’S CONSTITUTION

1. 1. Chiiiidrigar, A. .Ramaswami Mudaliar and B. L. Mitter. The danse as
redrafted by the committee was moved by B. L. Mitter on July IS.- It read :
It ' Shall be competent for a ''Province with the previous 'sanction of the
Federa'I Government, to undertake, by an agreement made io' that behalf
with any Indian State, any legislative, executive or judicial functions vested
io that State, provided that the agreement relates to a subject included in
the Provincial or Concurrent Legislative List. On S'lich an agreement 'being
concluded, the Province may, subject to the terms thereof, exercise the
legislative, executive or judicial functions specified therein through the
appropriate authorities of the Provinces'.

■ One of the representatives of an Indian State, A. P. Pattani from Bhavnagar,
raised the question .of reciprocity " and suggested that a corresponding
provision should be made whereby it would be possible for an Indian State
to exercise similar jurisdiction in Provincesh IB. L. Mitter conceded the
validity of this suggestion, but he thought that arrangements would be
passible between a State and a Province through an agreement made with
the consent of the Union Government giving the State extra-territorial
jurisdiction over a 'tract of British India where this was necessary. But
the .provincial constitution was not the appropriate place for making
provision for the jurisdiction of Indian Statesl

There was also some difference of opinion regarding the manner in which
the Council of Ministers should be constituted. Aziz Ahmad Khan moved
an amendment on July 17, 1947, proposing that the Governor’s Ministers
should be elected by the Assembly by means of the single non-transferable
vote ‘In order that all the parties on whose behalf the Ministers would govern
should have a hand in their appointment, to secure the confidence of every
party in the Cabinet.” He advocated this procedure because in 'his opinion
very few of the parties were based on any political principles and most of
them depended on religious distinctions.

These religious groups have existed for centuries and have continued as
such from time immemorial. It is known to one and all that the untouchables
are living here for scores of centuries. It is absurd to think that no sooner
the Constitution is framed the religious groups will disappear and parties
will be formed on political and economic principles. It would be a dangerous
experiment to think of planting the English system of democracy where
party affiliations are based exclusively on political principles or of creating
those conditions here‘.

Support for this proposal came mostly from certain Muslim members "who
were apparently anxious that their community . should receive a due share

A. Deb., Vol TV, p. 666.

Hbid.. p. 667.
p. 66S.
pp. 632-3.

THE GOVERNOR AND THE STATE EXECUTIVE

391

of representation in the Provincial Ministries. Thus, Syed Karimuddin said
that there was only one way of stopping mutual conflict in India— the
representatives of every party in the Legislature should be included in the
Ministry*. Similarly Mahboob Ali Baig characterized the parliamentary-
system of democracy as not being a democratic system of government at
all and argued that in the peculiar circumstances of the Provinces in India,
the minorities and people from all sections of the population should find
a place in the Cabinetl The proposal, however, met with strong opposition.
Vallabhbhai Patel, replying to the debate, said that the election of Ministers
by proportional representation was a system contrary on the whole frame-
work of the Constitution and cut at the very root of democracy. The scheme
of the Constitution as framed by the Provincial Constitution Committee
contemplated joint responsibility. Any election of Ministers as suggested
by the amendment would mean individual responsibility and individual
Ministers who would go their own way. The whole machinery would be
corrupted and he urged the Assembly to reject the amendment.

The amendment was negatived and the Assembly accepted the proposal
of the Provincial Constitution Committee.

There was also some discussion on the emergency powers of the Governor
and the Assembly adopted an amendment moved by Munshi to empower
the Governor to take over the administration of a Province when there was
a grave threat to peace and tranquillity and the Governor found that he
could not cany on the government in accordance with the advice of his
Ministers*.

The proposals of the Provincial Constitution Committee as approved by
the Assembly were incorporated in the Draft Constitution prepared by the
Constitutional Adviser in October 1947*. This Draft had twelve clauses
dealing with the Governor and the Deputy Governor (clauses 111-122): two
dealing with the executive authority of the Province (clauses 123 and 124)
and two clauses (125 and 126) dealing with the Council of Ministers. The
Draft also had a schedule (Fifth Schedule) containing an Instrument of
Instructions to the Governor.

The Drafting Committee made some suggestions involving in some cases
a substantial departure from the decisions of the Constituent Assembly. On
the method of choosing of Governors, the committee commented that some
of its members felt that the co-sxistence of a Governor elected by the
people and a Chief Minister responsible to the Legislature might lead to
friction. The committee therefore suggested an alternative method of
appointing Governors: the Legislature should elect a panel of four persons

■G. A. Deb.. Vol. IV, p. 642.

"■Ibid., p. 643.

‘Ibid., pp. 654-5.

*Ibid., p. 729. See Chapter on Emergency Provisions.

“Select Documents 111, l(i), pp. 44-50.

392

FRAM!NG OF INDIA’S CONSTIT0TION

by. the Eiethod of proportional representation and the President of the
Uii,ioii would appoint one of them as Governor^

The other provisions .relating to the Governor followed generally the
provisions included in. the case of the President^ A Governor was to hold
office ..n.omi.ally for, a te.rm of five years, but could re.sigii earlier; provision,
was also made whereby a Governor could be removed from office by
impeachment for violation of the Constitution. Every Governor was eligible
for election or appointment, as the case might be, for a second term but not
thereafter. A Governor was required, in order to be eligible for election
or appointment, to be a citizen of India who had completed the age
of thirty-five years. If the office was to be filled by election, a
candidate for the office should not be subject to any disability which would
disqualify him for being a member of the Legislative Assembly of the
State but it was not necessary that he should be a resident of the State; no
person who held any office of profit under the Government of India or
the Government of a State or a local authority (other than the office of
a Minister) would be eligible to stand for election. It was further laid down
that the Governor, while holding office as such, could not be a member of
Parliament or of the Legislature of any State; and if a. person who was a
member of any such Legislature was elected or appointed a Governor, he
would be deemed to have vacated his membership. Provision was also made
for his salary, allowances and other amenities : this was included in the
Second Schedule of the Draft Constitution but would be subject to
modification by an Act of the State Legislature.

The procedure for the impeachment of the Governor, should such an
occasion arise, wa.s the same as that approved earlier by the Constituent
Assembly. No impeachment proceedings could be initiated except on the
basis of a charge preferred by the Legislative Assembly of the State, contained
in a resolution moved after notice in writing had been given by not less
than thirty members, and passed by a majority of not less than two-thirds
of the total membership of the Assembly. When a charge was so preferred,
the Council of States at the Centre was to appoint a committee to investigate
the charge. If as a result of such investigation a resolution was passed,
supported by not less than two-thirds of the total membership of the Council
of States that the charge had been sustained, the Governoi’ would automatically
be treated as having been removed from office.

The Drafting Committee considered that howsoever the Governor was
selected — ^wlxether elected by the people, or appointed, by the President — it was
not necessary to have a Deputy Governor. Unlike the Vice-President at the
Centre, the Deputy Governor could not be made the Chairman, of the
Upper House of the Legislature, as there might not be two' chambers' in, most

^Draft Constitution prepared by the Drafting Committee, Fe'b., !94S, art. 131,
Select Documents III, 6, p. 564.

Hbid., article , 137. ‘ ' ,

THE GOVERNOR AND THE STATE EXEC0TIVE

393

of the States. The Deputy Governor would ■ therefore have no definite
functions to perform so long as the Governor was there and the only ground
for creating the office would be the availability of some person to step into
the position of the Governor on the occurrence of a sudden vacancy. The
Drafting Committee was of the view that it would be sufficient to include
a provision in the Constitution enabling the Legislature of the State (or
the President if the Governor was to be appointed by him) to make the
necessary arrangements for the discharge of the functions of the Governor
in an unforeseen contingency. Tlie Drafting Committee inserted a provision
accordingly that the Legislature or the President might make such provision
as was considered fit for the discharge of the functions of a Governor in
any contingency not provided for in the chapter. Tlie specific suggestion
which the committee made was that it could be laid down in advance that
the Chief Justice of the State would discharge the functions of the Governor
in the event of a sudden vacancy occurring in that officeh

Formal provisions, as in the case of the President, were also included
providing that the election to the office of the Governor would be held
before the expiry of his term of office; and that an election to any vacancy
that might arise in the office by reason of the death, resignation or removal
of the incumbent of the Governor’s office would be held as soon as possible-
after the occurrence of the vacancy.

The provisions regarding the Governor and the Deputy Governor were
subjected to further consideration in the light of comments and suggestions
received by the Drafting Committee. Jaya Prakash Narayan, criticizing
the provision made in the Draft Constitution, reiterated the view already
held by some of the members of the Drafting Committee that the co-existence
of a Governor elected by the people and a Chief Minister responsible to
the Legislature might lead to friction. The appointment of a Governor by
the President from an elected panel, proposed by the Drafting Committee,
would also not be a satisfactory solution, as the Federal Chief Minister might
appoint from the panel a person from his own political party, even if such
person did not secure the largest number of votes. Besides, such a situation
was not likely to promote harmony between the Union and the States. The
suggestion made by Jaya Prakash Narayan was that the Governor should
be elected by proportional representation by an electoral college consisting
of the members of the State Legislature and the representatives of the State
in Parliament.

The Special Committee, meeting on April 10 and 11, 1948, came to the
conclusion that an elected Governor would be “completely useless” from
the point of view of his having any controlling voice in the administration

^Para 12 of forwarding letter and footnote to article 138, Select Documents 6,
pp. 513, 567. ■ ■

^Comments and Suggestions on the Draft Constitution, Select Documents IV. l(i),
p. 69. ,

394

FEAMING OF INDIANS CONSTITUTION

and therefore there was, no need for going through the election process. It
was a!sO' possible , that with the prestige ... of a general election, by adult
franchise, a Governor might seek in an emergency to override liis Ministiyr
The Special Co:ni.mittee thought that the presence of two pers.o.iis elected in
this .Ei.a.niier to the positions of the Governor and of the Chief Minister
iniglit. lead to eiii.barrassiog situations and rccoiii.meoded that the Goveo.ior
should be directly appointed by the President, and that it was not .necessary
to reso.rt. to the election of a panel of candidates'. The Drafting Coiniiiittee
also proposed at one sta.ge an a.m.eodment to this e.ffectl

T!ie^ Drafti.iig Coiii,!iiittee considered all these views at its meeting held
in October, 1948, but decided not to make any changes in^ its'''p^rt>posaIs as
embodied in the Draft Constitution of February, 1948.' The .comm..ittee
seemed to " prefer that the decision be left to the Constituent Assembly "to
choose between the various alternative courses suggested.

Draft article 131, which related to the method of choosing' Governors,
came up for discussion in the Assembly on May 30, 1949, when Brajeshwar
Prasad moved an amendment proposing that the Governor should be
appointed by the President “by warrant under liis hand and seaF'l Earlier.,
when the provisions regarding the State executive were being discussed, the
same meiiiber had, differing from all the earlier decisions of the Constituent
Assembly, put forwa.rd with some emphasis a plea for a unitary government
for the whole of India — a view which foimd support from P. S. Deshmukh.
This view^ Brajeshwar Prasad admitted, ran counter to the accepted principles
of provincial autonomy, federalism and democracy. He however laid great
stress 'on the arguxuent.that the doctrine of separation of powers had been
exploded. He advocated that the whole of India should be divided into
divisional commissionerships, with enhanced powers, if necessary, all directly
fuiictioniiig under the superintendence, direction and control of the Centre.
The existence of a Legislature, Ministry and Governor was according to
him harmful, to the interests of all Provinces. All these . arguments were at
that stage beside the point, because the stage had been 'reached ' when the
Assembly was to discuss the articles and not to reopen major basic principles;
and the President of the Assembly asked members to confine themselves to
the articles under discussion^

Brajeshwar Prasad’s amendment proposing that the Governors . should
be perso.ns appointed by the Centre was in keeping with Ms general views :
and in proposing it he suggested that the President’s cho.ice should be
unrestricted and unfettered and that it was necessary tO' maintain the authority

^Minutes, Select Documents IV, p. 409. See aiso' Munshi. C. A. Dek,:¥oh
Vni, pp. 452-3, (May 31, 1949).

Suggestions' on the Draft' Constitution, Seto Documents ' lY,

ua 70.

^c; X £)el>.,:,VoL VIII, p. 426.' . . .■ '

417-20.

THE GOVERNOR AND THE. STATE EXECUTIVE 395,

of the Government of India intact over the States. The amendment evoked
a considerable volume of support. The arguments against the alternatives of
election proposed by the Drafting Committee, either by adult franchise , or
by a. majority of the Lower House or both Houses of the Legislature, and
appointment from a panel of four persons elected by the Legislature, were
ably summed up by Alladi Krishnaswami Ayyar. Apart from, the fact that
where a Governor was elected there was the danger that he Tiiight clash
w^ith his Ministers. Alladi Krishnaswami Ayyar emphasized that under
modern conditions elections would have to be fought out on a party ticket
and during elections the party would have to rally round a leader who
would be the presumptive Premier of the State. If the Governor was also
to be elected, the question would arise as to whether the party would rally
round the Premier or the Governor. The whole basis of the constitutional
structure was harmony between the legislature and the executive. If the choice
of the Governor was left to the President and his Cabinet, they might choose a
person of undoubted ability and position in public life who at the same time
had not been mixed up in provincial party struggles or factions; a person
who was likely to act as “a friend and a mediator” of the Cabinet and help
in the smooth working of the Cabinet Government. Alladi Krishnaswami
Ayyar stressed the position of the Governor as a constitutional head, a
sagacious counsellor and adviser to the Ministry : and he hoped that the
convention would develop whereby the Government of India would consult
the State Government in the selection of the Governor^. Supporting this
argument Jawaharlal Nehru expressed the fear that, apart from the
expenditure of time and money involved in an election, the election of
Governors would encourage a “narrow, provincial way of thinking and
functioning in each State”, Democracy should of course be based on the
electoral process; but this had been done and in his opinion it was
unnecessary to “duplicate it again and again”. It would be infinitely better
if a Governor was not intimately connected with the local politics and factions
in a State, but was a more detached figure, acceptable to the State, no
doubt, but not known to be a part of its party machines
Speaking on the amendment, Ambedkar on behalf of the Drafting
Committee said that according to the principles governing the Provincial
Constitution, the Governor was required to. follow The advice of his. Ministry
in all matters and was not to have any functions in, .which h© was required
to act in his discretion or exercise his individual judgment Having regard
to this fact the Drafting Committee felt that it was not necessary to ' go
through the process of an election, with ull The attendant cost and trouble,
for ■filling the;: office of ■ the Governor who was to "be “purely omamental”. ,
There was, therefore, no fimdamentai objection to the principle of nomination

T. 'Dek, Vol.' VIII,. p. 431. ■ ■ '/.yT'

Vm,,pp.", 454-6. ■'

396

FRAMING OF INDIANS CONSTITUTION

and. .he woo.ld.. leave it to the Assembly to decide on the maimer of clio-osing
the Go¥e,rii.orh

Wlien. the matter was put to the vote of the Assembly, the amendment
moved by Brajeshwar Prasad (for the appointment of the Governor by the
President) was .adopted. Pursuant to this decision, the Assembly adopted a
number of consequential amendments moved by Ambedkar to the other
draft articles relating to the Governor. His term of office was to be five
years or ''during the pleasure of the Preside.nt”, and if he wi.shed to resign,
the resignation was to be addressed to the President. Draft article 133,
which provided that the Governor would be eligible for re-appointment or
re-election for one term, was omitted. Draft article 134, which laid down
the qualifications' for election or appointment as Governor, was simplified
and merely prescribed that a person should be a citizen, of India who had
completed the age of thirty-five years in order to be qualified for the
appointment. Tlie provision regarding the impeaclimeiit of a Governor for
violation of the Constitution was omitted. K, T. Shah moved an amendment
seeking to provide that a Governor might be rc,moved from o„Sice by
impeachment for violation of the Constitution, for physical or me,iita,!
incapacity or bribery or corruption'. Ambedkar explained, however, that
this was unnecessaiy^ since the President already had, the power given, to
him in general terms to remove a Governor from office and it was needless
to burden the Constitution with further limitations®. Draft articles 139 and
140 dealing with procedural matters relating to the election of Governors
were also omitted. The articles relating to the appointment of the Governor
and other matters relating to his office were renumbered 153 to 158 in
revision.

The Assembly also accepted the proposal of the Drafting Committee that
it was not necessary to create the office of Deputy Governor and that the
President might be empowered to make such provision as he thought fit for
the discharge of' the functions of the Governor on the occurrence of a vacancy
or when the Governor was unable for any reason to discharge his dulies^
The Draft Constitution prepared by the Drafting Committee in February
1948 included three articles relating to the executive power of the State
and its extent. Draft article 130, which contained the formal vesting
provisions, followed the similar article in the case of the President and
declared^ that the executive power of the State would be vested ' in the
Governor and would be exercised by him in accordance with the Constitution
and the law. The article also contained the further formal provision that
this would not have the effect of transferring to the Governor any functions
conferred by any existing law on subordinate authorities; and that

A. Deb., Vol. VIII, pp. 467-9.
md., p. 472.

p. 474.

^ihid., p. 4S8.

THE, GOVERNOR AND THE STATE EXECUTIVE

397

Padiauient and the State Legislature would have the power to coufer functions
and impose duties on such subordinate authorities. . The article was passed
by the Assembly without much discussion on May 30, 1949' : and it n,ow
figures as article 154 of the Constitution.

The exteri,t of the executive authority of the State w^as defined in draft
article 142 :

Subject to the provisions of this Constitution, the executive powe.r of each
State shall extend —

(a) to the matters with respect to which the Legislature of the State has
power to make laws ;

(b) to the exercise of such rights, authority and jurisdiction as are
exercisable under any agreement entered into with any State or group
of States for the time being specified in Part III of the First Schedule
under article 236 or article 237 of this Constitution.

It may be recalled that the policy underlying clause (b) had already been
discussed earlier in, the Constituent Assembly. As B. L. Mitter explained :
The clause gives a Province extra-territorial jurisdiction by agreement' with
a State. The reason for it is this. Sup'pose a very backward State adjoining
a Province has some executive or judicial functions but has no machinery
to exercise those functions. Then it can come to an agreement with a
neighbouring Province so that the machinery of the neighbouring Province
may be available to that backward State for the benefit of both**.

The article was discussed by the Assembly on June 1, 1949. By this time
considerable progress had been made in the process of integration of the
Indian States. Many of them had been merged in the adjoining Provinces
and several had been united to form Unions of States. The process was
still ill progress but there was veiy good reason to hope that, by the time
the Assembly finally adopted the Constitution, the rapid political changes
taking place in the Indian States would result in a new India consisting of
a comparatively small number of viable administrative units in the place
of the crazy patchwork of a large number of disparate States with different
standards of government. It was also hoped that all these units would in
future have the same form of popular, democratic and responsible government.
Should this come to pass, the need for the Provinces to exercise
extra-territorial jurisdiction in Indian States would no longer arise.
Accordingly, T. T. Krishnamachari moved an amendment suggesting the
omission of clause (b) of the article. In explaining the reasons for tlie
omission he had necessarily to be guarded, since the final picture of the
Indian States and their position in the new Constitution had still to be
decided. He proposed to omit clause (b) which referred to Indian. States,
adding that a decision would have ,to be taken later about these prO'Visions

A. Deb.. Vol. VIII, pp. 422-4.
mid.. Vol. IV, p. 666.

398

FRAMING OF' INDIANS CONSTITUTION

when the position of the States was defined .more precisely. The ameiidment
was adopted without any discussion and the article as passed by the Assembly
:me,reiy declsrecl that, subject to the provisions of the Constitution, the
executive power of each State would extend to tlie matters with respect to
.whicli the Legislature of the State had power to make lawsk

At the revision stage the Drafting Committee added a proviso to the
article :

Provided that in any matter with respect to which the Legislature of a
State and Parliament have power to make laws, the executive power of the
Slate sliali be subject to, and limited by, the executive power expressly
conferred by this Constitution or by any law .made by Parliament upon
the Union, or authorities thereof.

This addition was made in order to embody clearly the decision of the
Assembly that the Union' Government could by virtue of a law made by
Parliament assume executive power' in respect of any matter in the
Concun*ent Legislative List. Where the Union assumed executive power in
this manner, the authority of the State would be excluded, but until the
Union did so all such powers on Concurreiit List matters would remain
with the States.

By this time it had become clear that no special provision would be
required necessitating the exercise of extra“teriito.rial jurisdiction, in Indian
States by Provinces. The article as so amended was renum.be.red- 162 in
the Constitution.

The Drafting Committee also included an article providing for the exercise
of clemency by a Governor.

As already observed, the Government of India Act, 1935, conferred on
the Governor-General acting in his discretion the power to remit or commute
sentences of death passed by any court in India. The Letters Patent creating
the office of the Governor-General also empowered him' tO' grant to any
one convicted of a criminal offence a pardon either free or subject to such
conditions as he thought fit to impose. For the rest, the power to exercise
e.lemen€y was regulated by the law of the appropriate Central and Provincial
Legislatures. Wlien the Union Constitution Comiiiitlee’s Report was under
consideration, in the Constituent' Assembly, the Assembly accepted a
suggestion made by Nv Gopalaswami Ayyangar that the power of clemency
should be divided between the head of the Federation and the heads of the
units" on the' principle that the head of the Federation would have the power
of- pardon in respect of offences against Federal laws while the head of the
unit would have the power of pardon in respect of unit laws; with one
modification, that the President would -have the right of exercising clemency
in -all cases where the sentence was a sentence of death*.

. A. Deb,, VoL VIII, p. 489.

'^Select Documents IV, p. 802.

A, Deb,, Vol IV, pp. 1014-28.

THE- GOVERNOR AND THE STATE EXECUTIVE

3$9

Following the decision' of the. Constituent A-ssembly on the Union
Constitution' CoiTiinittee’s ■ Report, the article conferring clemeiicy powers on
the Governor (draft article 141) provided that the Governor’s power to
grant pardons, reprieves, ' respites or ■ remissions of punishment would be
exercisable in ali cases where any person was co-nvicted of an offence against
any law relating to matters in the concurrent and State legislative lists. The
article w^as adopted by the Assembly without discussion on June 1, 1949h
Siibsequently, on October 17, 1949, T. T. Krishnamachari on, behalf of the
Drafting CoiHniittee moved an amendment to make it clear that the power
of clemency would bo exercisable where the sentence was against law^s
relating to matters to which the executive power of the State extended^ This
aniendiiieBt was accepted : and at the revision stage the article was. numbered
161.

Articles 143 and 144 of the Draft Constitution contained provision' about
the Council of Ministers in a State. 'Article 143 had three clauses^ The
first clause declared that there would be a Council of Ministers with the
Chief Minister at the head to aid and advise the Governor in the exercise
of his functions except , in so far as lie was by or under the Constitution
required to exercise any of them in his discretion. The other twO' clauses
laid down the following similar provisions in- the Act of 1935, that

(a) if any question arose whether any matter was or was not one as
respects which the Governor was required to act in his discretion,
the decision of the Governor in his discretion would be final ;

(b) the validity of anything done by the Governor would not be called
in question on the ground that he ought or ought not to have acted

^ in his' discretion ;

(c) the question whether any, and if so, what advice was tendered by
the Ministers would not be inquired into in any court.

One ' peculiar feature of the Governor’s discretionary powers -may be
noticed in passing. Under the Government of India Act of. 1935, from which
these provisions were borrowed, the Governor acted in subordination to the
Governor-General in • the exercise of his discretionary powers ; and the
Governor-General himself functioned in subordination to the Secretary of
State -for India. Thus the ultimate responsibility for these 'matters rested in
the British Government which ■ was responsible to the British Parliament. . But
in the- scheme as co-iitemplated (at the time) in the new Constitution,,,there,
was -no proposal to make the Governor responsible to a.ny one for the
exercise of his discretionary powers.

Originally, in the memorandum of May 30, 1947, it was envisaged that
the ■ Governor would have a special responsibility- for certain -■purposes — for

■' ' d 'Deb.. VoL VIII, p.'488.

- VoL X, p. 3,92.'

Til,. 6, 'p. ' 569.

400

FRAMING OF INDIA’S CONSTITUTION

the prevention of a grave menace to the peace and tranquility of a Province
or 'any part thereof, for safeguarding the legitimate interests of the minorities,
etc. The effect of this was that, for the proper discharge of these sp^ial
responsibilities, the Governor’s power to act independently extended over
the whole range of provincial functions. The Constituent Assembly however
changed this plan. The special responsibility for peace and tranquillity was
transformed into a specific power enabling the Governor in an emergency
to assume personally the functions of the Provincial Government for a period
of two weeks, making a report to the President. The Provincial Constitution
Comiiiittee did not accept the need of a special responsibility in relation
to minorities.

The result was that, as it emerged from the Constituent Assembly, the
discretionary powers became exercisable not for certain purposes but in
relation to certain specific functions. Adopting this plan, the Draft
Constitution specified, in various articles distributed over different parts of
the Constitution, certain matters as those in which the Governor would be
required to act in his discretion. These were :

(1) appointment and dismissal of his Ministers [(article 144(6)];

(2) summoning of the Legislature and dissolution of the Legislative
Assembly (article 153) ;

(3) power to return to the Legislature for reconsideration a Bill submitted
to Mm for his assent (article 175) ;

(4) issue of a proclamation in an emergency superseding his Ministers
and assuming to himself executive functions (article 188) ;

(5) appointment of the Provincial Auditor-in-Chief (article 210) ;

(6) appointment of the Chairman and members of the Public Service
Commission (article 285).

In addition the Governor of Assam was to act in his discretion in certain
matters relating to the administration of the autonomous districts of Assam.

Tile provisions confening on the Governor special powers to act in certain
matters in his discretion, independently of his Ministry, was considered by
the Special Committee at its meetings held on April 10 and 11, 1948k The
committee came to the conclusion that, in view of the change suggested by
it that the Governor should not be elected but nominated by the President,
all reference to the exercise of functions, by the Governor in his discretion
should be omitted from the ' I>raft Constitution. This however was not
fully adopted ; and no amendment was suggested by the Drafting Committee
to article 143.

■ As already iioticed, Ambedkar, the Chairman of the Drafting Committee,
stated categorically, when the question of the method of choosing the Governor
was under discussion, that the Governor would not exercise any functions
in his discretion and that according to the principles of the Constitution

'Minutes, Select Documents IV, p. 411.

THE GOVEENOR AND THE STATE EXECUTIVE

401'

he would be required to follow the advice of his Ministty in all matters^
When article 143 was under consideration, H. V, Kamaib moved an
aiiiendmeiit seeking to delete the reference to the exercise of such discretionary
functions ; and Rohiiii Kumar Chaudhu.ry drew poiiitec! attentioE to
Ambedkar’s, statement made earlier that the Governor would be merely a
symbol. But Ambedkar adopted a stand on the article which was not quite
consistent with his earlier statement. He maintained that ‘'the retention in,
or the vesting the Governor with, certain discretionary powers is in no sense
contrary to, or in no sense a negation of, responsible government”"; and
on this argument — basing his stand also on precedent in Canada and
Australia — he opposed Kamath’s amendment. The Assembly supported
Ambedkar and negatived the amendment..

It is, hov/ever,. worth noting that as the various articles which conferred
these discretionary functions came up for consideration, the. Drafting
Committee suggested amendments deleting the requirement that the
Governor would act in his discretion. As a result, in the Constitution as
adopted finally, full ministerial responsibility without any discretionary powers
for the Governor was established over the whole field of State administration.
The only matter in which the Governor could act independently of his
Ministers was in relation to certain tribal areas in Assam where, for a
traositional period, the administration was made a Central responsibility
and the Governor was to act as the agent of the Central Government. But
in spite of this radical change in the content of the powers of the Governor,
no change was made in draft article 143 and the reference to the Governor
exercising certain functions in his discretion still remains. At the revision
stage the article was numbered 163.

Draft article 144 provided for various matters relating to the Council of
Ministers. It laid down that the Ministers would be appointed by the
Governor in his discretion and would hold office during the Governors
pleasure. Following the recommendations of the sub-committee on tribal
and excluded areas, there was to be a Minister expressly in charge of tribal
welfare in the Provinces of Bihar, the Central Provinces and Berar
(subsequently renamed Madhya Pradesh) and Orissa, though this Minister
could in addition hold charge of the welfare of Scheduled Castes or any other
work of Government. A person who was not a member of the ■ State
Legislature could be appointed as a Minister, but such a Minister was required
to become a member within six months, as otherwise he would be disqualified
for holding the office. The Instrument of Instructions included in the Fourth
Schedule' of the Draft Constitution was to govern the choice of . Ministers
and ; the manner of exercise of the executive functions of Government; but,
taking the cue from the Government of India Act, it was laid down in, the

, iC. A. .Dek, VoL VIIl, pp. 467-S.
pp. 489-502.

'27

402

FRAMING OF INDIA’S CONSTITUTION

I>raft Constitution that the validity of anything done by the Governor would
not be liable to be called in question on the ground that it was done
otherwise than in accordance with the Instrument of Instructions. Finally
it was provided that the salaries and allowances of the Ministers would be
such as the Legislature might from time to time by law determine, and
until so determined, the salaries and allowances to be paid to them were
specified in the Second Schedule of the Constitution,

The primary object of the Instrument of Instructions appears to have been
to give efiect to the recommendations of the Minorities Sub-Committee and
the Advisory Committee on the issue of the representation of the minorities
in the executive. These committees, while rejecting a proposal that the
Constitution should itself contain specific provision for the reservation of
seats in the Central and Provincial Cabinets for important minorities in
proportion to their population, felt at the same time that the Constitution
should draw the attention of the President of the Union and of Governors to
the desirability of including as far as possible members of important
minority communities in their Cabinets. The committees accordingly
recommended that a convention should be provided in a schedule to the
Constitution on the lines of paragraph 7 of the Instrument of Instructions
issued to Governors under the Act of 1935^ The Instrument of Instructions
framed by the Drafting Committee enjoined on the Governor, in making
appointments to his Council of Ministers, to appoint, in consultation with
the person most likely to command a stable majority in the Legislature, those
persons, including as far as possible members of important minority
communities, who would best be in a position to command the confidence
of the Legislature. He was at the same time required constantly to bear in
mind the need for fostering a sense of joint responsibility in his Ministers.
Ihe Instrument further directed the Governor to be guided by the advice of
his Ministers except in relation to matters in which he was required to act
in his discretion. Finally, there was an exhortation that the Governor should
do all that lay in him to maintain standards of good administration, to
promote all measures making for moral, social and economic welfare and
tending to fit all classes of the population to take their due share in the
public life and the government of the State, and to secure amongst all classes
and creeds cooperation, goodwill and mutual respect for religious beliefs
and sentiments*.

When article 144 was discussed in the Assembly on Jxme 1, 1949, several
points were raised. Ambedkar on behalf of the Drafting Committee moved
an amendment that the Chief Minister would first be appointed by the
Governor and the other Ministers appointed (also by the Governor) on

Rei>ort of Advisory Committee, Select Documents II, 12(i), p. 415.

“Draft Constitution prepared by the Drafting Committee, Fourth Schedule, Select
Documents III, 6, p. 650.

THE GOVERNOR AND THE .STATE EXECUTIVE

403

tile advice of the Chief Minister ; that the Ministers would hold office during
the pleasure of the Governor, and that the Counci of Ministers would be
coliectively responsible to the Legislative Assembly of the State'. . He also
moved another amendment deleting the requirement that the:: ap{»intmeEt
of the Ministers would be made by the Governor acting in Ms discretion.
The intention was that,' as in the case of the Union Ministers, the Governor
would act' according to accepted parliamentary practice in this matter, as
laid down in the draft Instrument of Instructions and that, as in' the case
of the Centre, joint responsibility would operate through the personality ■ of
the Chief Minister and the position accorded to him by the Constitution.
These "amendments were adopted by the Assembly without much
discussion..

But certain other amendments which were moved evoked coiisiderafalc
discussion. 'Muhammad Tahir and Mohamed Ismail Sahib wanted it to ,be
spscifically stated that Ministers could remain, in office only so long as they
retained the confidence of the Legislature : the Governor should not be
placed in a position in which he could permit to remain in office persons
who had forfeited the confidence of the Assembly. Tahir said :

It may happen that the members of the Legislative Assembly may not have
confidence in the Ministers, but at the same time, through long association
with the Governor, the Ministers may enjoy the pleasure of the Governor
quite ail right. I want that the hand of the Governor should be made
stronger so that if he finds that over and above the question of his pleasure,
if the Ministers have not got the confidence of the Assembly, the Ministry
should be dissolved. . . Therefore, I submit that if the Governor finds that
the Ministers do not enjoy the confidence of the House, in that case also,
he should ask. them to vacate the office and get the Ministry
d,issolved^.

Tahir' also moved an amendment to prohibit the appointment as a,. Minister
of anyone who was not already a member of the Legislature'*; and Shibban
Lai Saxena wanted ail Ministers to be’ members of the Legislative' Assembly;
it would be -undemocratic that a Minister should be a person who could not
win an -election by adult franchise^ • ■

H. V. Kamath, backed by K. T. •. Shah, agai-n,; sought to introduce the
principle that any person, appointed as a Minister should declare his assets.
The amendment moved by Kamath,. as modified by Shah, provided :

(a) that every Governor and Minister should before , entering on Ms
office make a declaration of all Ms property and assets;

(b) that he should either dispose, of all such property ' or "make it over

’C. . A, Dek, VoL-VIII, p.' 503. '

Td/d.,'P."507. '

pp. 503-4.
bid,, 505.
mL pp. 505-6.

404

FRAMING OF INDIA’S CONSTITUTION

in trust to the Reserve Bank of India — to be returned to him on
vacation of office ;

(d) in the event of there being a material change in assets, he would
give such explanation as the Legislature might deem it necessary to
demandh

Summing up the views of the Drafting Committee on these amendments,
Ambedkar opposed all of them. There was agreement on all hands that
it was the intention of the Constitution that Ministers should hold office
only during such time as they commanded the confidence of a majority in
the Legislative Assembly. This was not expressly stated in the Constitution
because such a provision was not made in other constitutions providing for
a paiffiamentary system of government. Tire words “during pleasure” were,
Ambedkar said, always understood to mean that the “pleasure” should not
continue when the Ministry had lost the confidence of the majority ; and
the moment the Ministry lost the confidence of the majority the Governor
would use his “pleasure” in dismissing it.

Dealing with the suggestion that all Ministers should be members of
the L^islative Assembly, Ambedkar explained that the scheme of tlie
Constitution was that the Governor could select his Ministers from the Lower
as well as the Upper House of the Legislature ; and the amendment restricting
the choice to members of the Lower House could not therefore be accepted.

He also opposed the amendments of K. T. Shah and H. V. Kamath
requiring the Governors and Ministers to make disclosures of their assetsl
ITie amendments were negatived by the Assembly and the two articles, with
the amendments approved by the Constituent Assembly, were adopted.

On October 11, 1949, T. T. Krishnamachari moved an amendment for
the deletion of the Fourth Schedule to the Draft Constitution containing the
Instrument of Instructiom to the Governor. This Instrument was, it will be
recalled, drafted mainly with the object of giving the Governor directions
about the manner of appointment of his Council of Ministers, the inclusion
in the Council of members of minority communities, and about the relations
of the Governor with the Council. As originally prepared by the Drafting
Committee, it contained four paragraphs. The operative portion of the
Instrument said, in the first place, that in making appointments to his Council
of Ministers the Governor would use his best endeavours

to select his Ministers in the following manner, that is to say, to appoint
in consultation with the person who in his judgment is most likely to
command a stable majority in the Legislature those persons (including so
far as practicable members of important minority communities) who will best

'C. A. Deb.. Vol. VIU, pp. 507-10.

’Ibid., pp. 520-1.

THE GOVERNOR AND THE STATE EXECUTIVE

405

be ia a position collectively to command the confidence of the Legislature.
In so acting, he shall bear constantly in mind the need for fostering a sense
of joint responsibility among the Ministers.

The Instrument went on to lay it down that in all matters within the
scope of the executive power of the State, save in relation to functions which
he was required by or under the Constitution to exercise in his discretion,
the Governor should, in the exercise of the pow'ers conferred on him, be
guided by the advice of his Ministers. Finally there was a general exhortation
to the Governor that he should do all that in him lay to maintain standards
of good administration, to promote all measures making for moral, social and
economic welfare and tending to fit all classes of the population to take
their due share in the public life and government of the State, and to
secure amongst all classes and creeds cooperation, goodwill and respect for
religious beliefs and sentiments^

When reviewing these provisions in the light of the comments and
suggestions received, the Drafting Committee proposed to include an
Instrument of Instructions for the President as well, and also to expand
considerably the provisions contained in the Governor’s Instrument. The
important addition they made was the inclusion of a provision for the
constitution of an Advisory Board, consisting of not less than fifteen members
of the State Legislature to be elected by the method of proportional
representation by means of the single transferable vote. This Board’s functions
were similar to those proposed for the Advisory Board to be set up for the
Union; it was to advise the Governor on appointments to the offices of the
Auditor-in-Chief for the State, the Chairman and members of the Public
Service Commission, and any member of the Election Commission for the
State. (The decision to have only one Comptroller and Auditor-General
and one Election Commission for the whole of India was a subsequent
development.) The revised Instrument also contained a direction to the
Governor that all Bills which would so derogate from the powers of the
High Court as to endanger the position which that court was designed to
fill, would be reserved for the consideration of the President^

T. T. Krishnamachari’s amendment sought to delete the whole of this
Schedule. Explaining the reason for this proposal, he said that it had been
decided that these matters, affecting as they did the relations of the Governor
with his Ministers, should be left entirely to convention. Elaborating the
argument further, Ambedkar pointed out that the discretion left with the
Governor was very meagre. The Constitution itself required him to act
on the advice of his Chief Minister in the matter of the selection of Ministers;
and if for any special reason his Chief Minister did not propose to include
in his Cabinet members of a minority community, there was nothing which

'Select Documents III, 6, Fourth Schedule, p. 650.

‘Ibid., IV, l(i), pp. 84-5.

405

FRAMING OF INDIANS CONSTITUTION

the Governor could do. Besides, the Governor had to act on the^ advice
of his Ministers with respect to any particular executive or legislative action
that he took. Ambedkar made the further point that in the past the Viceroy
or the Governor to whom these instructions were given was subject to the
authority of the .Sccretaiy of State and' could be removed for persistent
refusal to carry out the Instrument of Instructions issued 'to Mm : but under
the Constitution of India there was no functionary who could ensure this
happening'. The proposal for ■ the deletion of the schedule was adopted
by the Assembly and' as a consequence clause (4) of ' draft article 144
authorizing these instructions was also omitted. The two articles, with
the amendments approved by the Assembly, now figure as articles 163 and
164.

NOTE ON AMENDMENTS

Part VI (Heading): Consequent on the classification of the territories
of India as “States” and “Union Territories” and the abolition of Part B
States the Constitution (Seventh Amendment) Act, 1956, omitted the words
“in Part A of the First Schedule”. The heading of this Part now reads “The
States”.

Article 152 : The Constitution (Seventh Amendment) Act, 1956,
substituted the words “the expression ‘State’ does not include' the State of
Jammu and Kashmir” for the words “the expression ‘State’ means a State
specified in Part A of the First Schedule”.

Article 153: The Constitution (Seventh Amendment) Act, 1956, added
a proviso permitting the appointment of the same person as the Governor
of two or more States.

Article 158: The Constitution (Seventh Amendment) Act, 1956, added
a proviso enabling the President, where the same . person was appointed as
the Governor of two or more States, to determine the proportion in which
his emoluments and allowances were to be allocated among these- States.

Article 371 : A new article 371 substituted for the original article bearing
the same number by the Constitution (Seventh Amendment) Act, 1956,
made certain,, special provisions for the 'States of Andhra Pradesh, Punjab,
and Bombay (Bombay at the time included all the Marathi and Gujarati
linguistic areas). Clause (1) of the article authorized the , President to set
up regional committees of the Legislative Assemblies of the States of
Andhra Pradesh and Punjab. The order of the President setting up such
regional committees could provide for their constitution and, functions and
make necessary modifications in ■ the rules of business- of the State
Governments , and in the rules of procedure-' of , the State -Legislative
Assemblies. It could also provide for the exercise of a special responsibility

Deb.. Vol. X,,pp 114-6,

THE GOVERNOR AND THE STATE EXECUTIVE

407

by the Governors of these States in order to secure the proper functioning
of these regional committees.

Qause (2) of the article empowered the President by order with respect
to the State of Bombay to provide for “any special responsibility of tite
Governor” for the establishment of separate development boards for
Vidarbha, Marathwada and the rest of Maharashtra, as well as fot
Saurashtra, Kutch and the rest of Gujarat, with the provision that a report
on the working of these boards would be placed each year before the State
Legislative Assembly. This special responsibility also extended to securing
the equitable allocation of funds for developmental expenditure over these
several areas, subject to the requirements of the State as a whole: and to
an equitable arrangement providing adequate facilities for technical
education and vocational training, and adequate opportunities for
employment in the State services, in respect of these areas, subject to the
requirements of the State as a whole.

Consequent on the division of the Bombay State to form two new States
of Gujarat and Maharashtra, in 1960, the Bombay Reorganization Act,
1960, substituted the words “with respect to the State of Maharashtra or
Gujarat” for the words “with respect to the State of Bombay”.

Section 26 of the Punjab Reorganisation Act, 1966, deleted “Punjab” from
article 371.

THE ATTORNEY-GENERAL AND THE
ADVOCATE-GENERAL

A LEGAL ADVISER of independence and high standing, designated the
Advocate-General, had for long been part of the administrative set-up in the
Provinces of Madras, Bombay and Bengal. The Parliamentary statute
creating this office provided that the Advocate-General would be
appointed by the King fay warrant and would “take on behalf of His
Majesty such proceedings as may be taken by His Majesty’s Attorney-
General in England”^. In practice the functions of the Advocate-General
were to advise the Provincial Governments on any legal problem which
might be referred to him, to represent the Crown in original civil causes
in the High Court to which the Crown was a party and also in any specially
important criminal appeals in the High Court. Instances of his power to
take such proceedings as might be taken by the Attorney-General in the
United Kingdom were his power to enter a nolle prosequi, or to grant a
fiat for review of verdict in criminal cases tried by the High Court in its
original jurisdiction, and to protect public rights in such matters as public
charities and public nuisances^ The Advocate-General had also certain
functions conferred on him under various laws and the Advocate-General
of Bengal functioned in addition as the Law Officer of the Government
of India’.

The Government of India Act, 1935, provided for an Advocate-General
for the Centre as well as one for each Governor’s Province. Their function
was to give advice to the respective Governments on “such legal matters,
and perform such other duties of a legal character as may from time to
time be referred or assigned to him”*.

It was not the intention of the Act that the office of Advocate-General
should, on the analogy of the Law Officers in the United Kingdom, have
a political side to it; in fact the main objective was to secure for the Central
and Provincial Governments the services of officers not only qualified to
give legal advice but also entirely free from the trammels of political or
party associations*.

The memoranda on the Union and Provincial Constitutions prepared by

'^Ilbert The Government of India, p. 279.

^ Joint Committee on Indian Constitutional Reform: Report (!934), para, 400.

®IIbert, The Government of India, p. 279.

’‘Sections 16 and 55.

Joint Committee on Indian Constitutional Reform: Report. (1934), para 401.

THE ATTORNEY-GENERAL AND THE ADVCX:ATE-GEHERAI.

409

tlie Coiistitiition,al Adviser, B. N. Rau, in May 1947, proposed to continue
tliis practice; an,d accordingly they contained simple provisions in regard
to the Advocate-General for the Union and the Advocates-General for tii.e
Provinces. The relevant paragraphs of these memoranda provided for the
appointmeiit of persons, qualified to be judges of the Supreme Court or,
in the Provinces, of High Courts, to give advice on legal matters that
might be referred to them\

The Union Constitution Committee and the Provincial Constitution
Committee, at their meetings held separately during June 1947, accepted
these clauses. The Provincial Constitution Committee, however, suggested
that the Advocate-General for a Province should resign with the Ministry
by which he was appointedv

The Constituent Assembly approved the provision recommended by the
Provincial Constitution Committed Later, when the clause recommended
by the Union Constitution Committee came up for consideration, it was
pointed out that there were three sets of duties which, the Advocate-General
had to perform — matters referred to him, duties assigned to him and statutory
duties under various Acts. Accordingly, the scope of the clause was widened
by the addition of the two latter categories of functions. Specific provision
was also made conferring on him the right of audience in all courts in the
Union of India'.

The provision for the Provincial Advocate-General made in the Draft
Constitution prepared by the Constitutional Adviser was accepted by the
Drafting Committee without any change. It read :

(1) The Governor of each State shall appoint a person who is qualified to
be appointed a judge of a High Court to be Advocate-General for the
State.

(2) It shall be the duty of the Advocate-General to give advice to the
Government of the State upon such legal matters and to perform such other
duties of a legal character as may from time to time be referred or assigned
to him by the Governor, and to discharge the functions conferred on him
by or under this Constitution or any other law for the time being in
force.

(3) The Advocate-General shall retire from office upon the resignation of
the Chief Mio.ister in the State, but he may continue in office imtil his
successor is appointed or he is reappointed.

^Memorandum on the Union Constitution, May 30, 1947, clause !4 ; and
Memorandum on the Provincial Constitution, May 30, 1947, clause 14, Select
Documents. lU 4501) and 2l(ilL pp. 477,- 636. ■

“Union Constitution Committee Minutes, , June ■ 30, 1947*, : Provincial
Constitution Committee Minutes, June 8,. 1947, Select Documents 11^ 16 and
22, pp. 563, 649..,':.. ;■ „

: A, Deb., VoL'IV, p. 663.

■nud., p.'922.

410

FRAMING OF INDIA’S CONSTITUTION

(4) The Advocate-General sbaii receive such remimeratioii as the Governor,
may determineh

The correspondifig provisions regarding the Advocate-General for the
Federation were, however, amended. The designation '‘Attorney-General
for , India” was adopted for this functionary to distinguish . him from the
Advocates-General in the States. This designation also followed the
terminology adopted in the United Kingdom and the United States of
Americal The draft finally approved by the committee read :

63. (1) The President shall appoint a person, who is qualified to be appointed
a judge of the Supreme Court, to be Attorney-General for India.

(2) It shall be the duty of the Attorney-General to give advice to the
Government of India upon such legal matters and to perform such other
duties of a legal character as may from time to time be referred or assigned
to him by the President, and to discharge the functions conferred on him
by or under this Constitution or any other law for the time being in force.

(3) In the performance of his duties the Attorney-General shall have right
of audience in all courts in the territory of India.

(4) The Attorney-General shall hold office during the pleasure of the
President, and shall receive such remuneration as the President may
determine.

When these articles came up for discussion before the Assembly, P. K.
Sen urged that the Attoniey-General and the Advocate-General should be
members of the Council of Ministers. The o,ffice of the Advocate^General
of a Province, as it then existed, was, he argued, nothing more than a bureau
of legal advice whose opinion was often treated with scant courtesy by the
■Government. The Advocate-General’s position should be much higher:
and this could be done only if he had the status of a Minister. He- favoured
the Advocate-General of a State being also its Law Minister in order that
he could maintain a high level in the legislative and executive structure of
the Government by regulating, shaping and moulding policy in regard to
legislation in all respectsl

Two .^amendments were moved by Nazimddin Ahmed : first, he' suggested
that the Attorney-General should retire from office on the .resignation of
the Prime Minister. He argued that the provisions governing the office of
the Attorney-General for India and of the Advocates-General for the States
should be the same; and since the Advocate-General of a State was required
to retire from his office on the resignation of the Chief Minister of the
State, the same principle should apply to the Attorney-General as well.

^Draft Constitution prepared by the Drafting Committee, February 1948, article
. Select Documents HI, 6, p. 570. ■

“Drafting Committee Minutes, November ■ 7-8, 1947, and January, 21-22, 1948.
Select Documents III, 5, pp. 418-9. Also see Draft Constitution, February !948j
footnote to article 63, Select Documents III, 6, p. 537.

"C. A. Deb,, VoL VIII, pp. 526-7.

THE ATTORNEY-GENERAL AND THE ADVOCATE-GENERAL

411

He sought support for the view from the position in the United Kingdom
where the Attorney-General was a member of the Ministry and had to retire
from office with the Ministry'. But when the articles about the Advocates-
General came up, Nazimddin Ahmed moved an amendment for the deletion
of the provision that the Advocate-General of a State should retire from
office upon the resignation of the Chief Minister and suggested that his
tenure, corresponding to that of the Attorney-GeneraL would be during
the pleasure of the Governor. This latter amendment w^as accepted by
Ambedkarl

By another amendment Naziruddin Ahmed proposed the addition of a
new clause to enable the Advocate-General of a State to appear on behalf of
his State, not only in all courts of the State but also in all other courts
within the territory of India, including the Supreme Court. The amendment
was opposed by K, M. Munshi who saw no ground for equating the position
of the Advocate-General for a State with that of the Attorney-General for
India. The latter w^as really an Advocate-General functioning throughout
India who had to go to any court in the country in order to appear for
the Government of India, while the former was meant for his particular
State and could have no locus standi as Advocate-General in any State
other than his ownl

The Assembly accepted the amendment of Naziruddin Ahmed that the
Advocate-General for a State would hold office during the pleasure of the
Governor and would not be required to resign with the Ministry. The other
amendments were not adopted. At the revision stage, the Drafting
Committee renumbered the draft articles as 76 and 165.

A, DeL, Vol VII,- p, 1348.
mid,, Vol. VIII, pp. 524-5.
pp, 5,25-6.

THE COMPTROLLER AND AUDITOR-GENERAL

A NOTABLE FEATURE of the administrative arrangements that prevailed in
India was the strict control over financial matters exercised by the Secretary
of State over the Government of India. Large powers of expenditure had
been delegated to the Government of India, but in the days prior to tlie
introduction of the Government of India Act of 1935, the previous sanction
of the Secretary of State was required in a number of cases. The budget
proposals, particularly those affecting taxation, were submitted to him before
they were presented to the Central Legislature. The Secretary of State
controlled the management of the currency reserves, the policy with regard
to exchange and currency, and borrowings both in India and abroad. For
the effective exercise of this control, there was set up the office of the Auditor-
General, one of whose principal functions was to sec that the line of
demarcation between the powers of the Secretary of State and the authorities
in India was maintained. The Auditor-General was appointed by the
Secretary of State: he was the final audit authority in India and, in addition
to his responsibility to the Secretary of State, he was an important part of
the machinery through w'liich the Legislatures enforced regularity and
economy in the administration of public finance. The Public Accounts
Committees set up by the Legislatures considered his reports on the
appropriation accounts, and he or his representative attended all their
meetings and guided their deliberations.

In addition to his functions as audit authority, the compilation and
maintenance of the accounts both in the Centre and the Provinces were,
with a few exceptions like the Defence and the Railway Departments, the
responsibility of the Auditor-General. The separation of the audit functions
from the maintenance of accounts was recommended by the Indian Reforms
Enquiry Committee (the Muddiman Committee) in 1924, but not much
progress had been made, primarily on account of the expense involved^

With the introduction of the Government of India Act of 1935, under which
the revenues of India were vested in the Federal and the Provincial Govern-
ments, it became necessary to provide that the Auditor-General of India
would report to the Governments and Legislatures in India and not to the
Secretary of State. But it was no less important than before that the standing
and independence of the Auditor-General should be fully safeguarded.
Accordingly the Government of India Act, 1935, provided that the Auditor-

’’Indian Statutory (Simon) Commission Report, 1930, Vol. I, para. 432.

THE COMPTROLLER AND AUDITOR-GENERAL

413

General should be appointed by the Grown and should have the same
permanency of tenure as a judge of the Federal Court. His duties and
powers both in relation to the accounts of the Federation and the Provinces,
were defined in an Order-in-Council made in 1936 ; the provisions of the
Order-in-Council could be added to or modified by an Act of the Federal
Legislature.

Reporting in 1934, the Joint Select Committee on Indian Constitutional
Reform expressed its definite opinion that, both on grounds of economy and
for other reasons, the existing centralized system of audit and accounts
should be maintained, though the committee reaUzed that it would be difficult
to withhold from an autonomous Province the power of taking over its
own audit and accounts should it desire to do so. The committee considered
however that, should such a step become necessary, long notice should be
given of the change; that a Provincial Auditor-General should have a
position which was no less independent of the executive than that of the
Central Auditor-General: and that the general form of accounts framed on
a common basis for all the Provinces should continue to be available for
such purposes as the consideration by the Federal Government of applications
for loans from Provincial Governments or proposals for the assignment of
revenues to units.

Accordingly the Government of India Act of 1935 provided that, in
pursuance of a Provincial Act made not less than two years after the
commencement of that statute, the Crown could appoint an Auditor-
General for the Province; but such appointment would be made only three
years after the Provincial Act was passed. The Government of India Act,
1935 did not contain any provision making it compulsory that the Auditor-
General should continue to be the authority in charge of the preparation
and maintenance of the accounts of the Federation and the Provinces; but
any change in the functions of the Auditor-General, both in respect of audit
and of the compilation and maintenance of accounts, could only be authorized
by an Act of the Federal Legislature, introduced with the previous sanction
of the Governor-General in his discretion. As a matter of fact, the Auditor-
General of India continued to be in charge both of the audit as well as
the accounts of all Provinces, and, excepting for some Central Government
Departments like the Railways and Defence, of the Central Government as well.

The Government of India Act of 1935 also provided that the audit reports
on the accounts of the Federation and the Provinces should be laid before
the respective Legislatures. The independence of the Auditor-General was
further sought to be secured by making him ineligible for further office
under the Government.

In discussions of the position of the Auditor-General and his powers and

‘Govt, of India Act, 1935, ss. 166-71. Joint Select Committee on Indian Constitu-
tional Reform : Report (1934), paras 396-9.

414

FRAMING OF INDIA’S CONSTITUTION

functions under the new Constitution this position was generally^ adopted.
The memorandum, on the Union Constitution, prepared by the Constitutional
Adviser. on May 30, 1947, envisaged an Auditor-GeEe,raL to be appointed
by the President, who could be removed from .office only in the same ma.:nner
as a judge of the Supreme Court. His duties a,iid powers were to be on
the lines laid dow,n in the Government of India .Act, 1935. The memorandum
on the P,rovi,ncial Constitution suggested that provisions, regarding’ Provincial
Auditor-General should also be on the lines of that Acth-. This general
outline was accepted by the Union Constitution Committee, but the
Provincial Constitution Committee suggested in . its report that the
appointment of the Auditor-General of a Province should be made by the
Governor in his discretion,, not on the advice of Ms Council of Ministers.
Ail these proposals were approved by the Constituent Assembly I

The Draft Constitution prepared by the Constitutional Adviser in . October
1947 contained separate provisions for the appointment of the Auditor-
General of the Federation and' Auditors-General for . the Provinces. The
Auditor-General for the Federation was to be appointed by the President,
and would, have the same security of tenure as a. judge of the Suprem.e
Court; he would be ineligible for further office under the Government.
His functions extended to the accounts of the Federation as well as of the
Provinces and were to be prescribed by federal law. It was open to a
Provincial Legislature to provide by law for the appointment of an Auditor-
General for the Province, but no such appointment could be made until the
expiration of three years from the date of publication of the Provincial Act
creating the office ; this would ensure that there would be enough time
for the changeover in audit functions. Appointment to the office of the
Provincial Auditor-General was to be made by the Governor in his discretion
and. he could be removed from office only in the same manner as a High
Court judge. The Provincial Auditor-General would be eligible for
appointment as the Auditor-General of the Central Government but to no
other office under the Government The report on the audited accounts
of the Federation as well as of the Provinces were to be submitted to the
President or the Governor as might be appropriate and these were to be
laid before the appropriate Legislature^

The Expert Committee on the financial provisions of the Uuion Constitution
which reported on December 5, 1947, observed that the provisions of this
draft ^ were '‘adequate for the purpose of, securing the independence of the

’^Memoraadum on the Union Constitution, May 30, 1947, Part IV, Chapter .VI,
clauses 29-30 and Memorandum on the Provincial Constitution May 30, 1947, Part IV.
The latter merely- stated, that the .provisions regarding the ,, Auditors-General- “should
he inserted on the lines of the provisions in the Act of 1935”. Select Documents. II,
!5{ii) and 2!(ii). pp. 486, 640.

"C. A. Deb., Vol IV, pp. 963 and 721.

^Clauses 106-109, 174-175, Select Documents 111, l(i), pp. 42-3, 72-3.

THE. COMPTROLLER. AND AUDITOR-GENERAL

415

Audltor-GeEcral”. The committee, however, favoured the coiitmuance of
a single Auditor-General for the , Government of India as well as for the
Provincial Governments and hoped that. the Provincial Governments would
themselves choose not to use their power of appointing separate Auditors-
Geoeral of their ownh

The Drafting Committee, generally approved the draft- provisio-ns
recommended by the Constitutional Adviser. The committee decided,
however, that the person performing the functions . of the Auditor-General
in a Slate should be designated Auditor-in-Chief in order to distinguish him
from the Auditor-General of India, and that the salaries and allowances
of the staff of these officers should be fixed by the Auditor-General and the
Auditor-in-Chief in consultation with the President and the Governor
respectivelyl

When' the draft articles came up for consideration before, the Constituent
Assembly on May 30, 1949, T. T. Krishnamachari moved several amendments
on "behalf of the Drafting Committee^ One of these sought to change the
designation of the Auditor-General to Comptroller and Auditor-General,
because it was felt that the duties of his office were not merely of audit but
also of exercising control over governmental spending. By his other
amendments Krishnamachari desired to provide (i) that before entering upon
his office the Comptroller and Auditor-General should take an oath similar
to that taken by the judges of the Supreme Court; (ii) that the entire
administrative expenses of his office — ^not only the salaries, allowances and
pensions of the staff but also those including contingencies, travelling
expenses etc, — should be charged upon the revenues of India, and thereby
made non-votable; and (iii) that the conditions of service of his staff should
be prescribed by rules made by the Comptroller and Auditor-General, subject
to any Parliamentary law, and also subject to the condition that in matters
of leave, salary, allowances, and pensions the President’s approval would
be required to the making of such rules.

B. Das moved an amendment suggesting that the appointment of the
Comptroller and Auditor-General should be made by the President '‘by
warrant under his hand and seal”. It was essential, he felt, that for the
maintenance of the integrity of the Government and of its employees in the
matter of public expenditure, the Auditor-General should possess the -same
status as members of the Union Public Service Comm,ission and the Chief
Justice of the Supreme GO'U^t^

The amendments evoked wide support in the Assembly. It was emphasized

* Report, para 80, Select Documents III, 4(iii), p. 282.

^Minutes, December 13, 14, 16, 17, 1947 and January 24, 1948, Select .Documents
ill, 5, pp. 383, 387, 396, 401; and Draft Constitution, Feb 1948, articles 210- L
IE, 6, pp. 595-6.

"C Vol' VIII,. pp. 403-5.. ■■

nUd., PP..403, 405-6. '

416

FRAMING OF INDIA’S ■CONSTITUTION

fay several members that the Comptroller and Anditor-Generai was the most
important functionary under the Constitution in his position as the watchdog
of the country's finances; and that in a democracy, while it was for the
Legislature to sanction, a.nd fox the executive to spend mo.iieys, the Comptroller
and Auditor-Gen. sral had to scrutinize that the moneys sanctioned by the
Legislature were prope,rly spent by the executive.

K. T. Shah proposed that the Comptroller and Auditor-General should
be appointed from among chartered accountants of not less^ than ten years'
standing. He was of the view that technical qualifications and practical
experience of auditing accounts were essential for the office^ Another
me.m,ber, Lakshminarayan Sahu, also shared Shah’s views on the subject ;
but Krishnamachari considered them entirely out of tune with the existing
p,ractice in India and elsewhere. The Comptroller and Auditor-General,
he said, was actually not an accountant per se; be had so many other duties
which required knowledge and experience of the entire administration, and
no change in the ■ existing practice of selecting the Auditor-General from
amongst the civil servants was called fo.rl
H. N. Kunzru suggested an amendment that .Parliament should have the
power to confer additional duties on the Comptroller and Auditor-General,
particularly in view of the increasing number of autonomous corporations
like the Damodar Valley Corporation that were being set up by the
Government. It wus necessary that Parliament should have the power to
assure itself of the soundness of the, financial position of such authorities.
This could 'be done if Parliament had the power to expand the functions
of the Comptroller and Auditor-General to enable him to perform audit
functions in regard to the accounts of such authorities alsoh
In his reply to the debate Ambedkar accepted the amendments moved
by Krishnamachari, Das and Kunzru. The Comptroller and Auditor-General,
he said, should be regarded as probably the most important dignitary or
officer in the Constitution. His duties were more important than even those
of the judiciary, and it was, indeed, unfortunate that the Comptroller and
Auditor-General was not made as independent as the judiciary in the matter
of appointment of his staff. Ambedkar also thought that since most of the
existing rules—proposed to be continued by his amendment — with regard
to the duties of the Comptroller and Auditor-General were' made by the
executive, there was an obvious incongruity in, that an officer supposed to
control the executive with regard to the administration of finances should
have duties prescribed by the executive itself. Howwer, -Ambedkar hoped

‘C A. Deb,, Vol VIII, P.-410.

■ TdiVL p. 411. ■ ,

, ■*/l>i^,.pp. 411-2. ■ ■ ,

"^The actual po'sition was that under the Government of - India Act, 193,5, the
functions of the Auditor-General were prescribed by or under an Order-in-Council in
the first instance and thereafter by Central law.

THE COMPTROLLER AND AUDITOR-GENERAL

that a future Parliaaient would take the earliest opportunity to replace those
rules, by a Parliamentary statute'.

The Drafting Committee appears to have had second thoughts on the
question of the desirability of permitting a multiplicity of audit authorities,
oii.e for, the Union and one for each State. On August 1, 1949, T. T.
Krishnamachari moved an amendment deleting draft articles 210 and 211
enabling State Legislatures to create their own Auditors-in-Chief. His
reason was that, since the Constituent Assembly bad already adopted
articles whereby the auditing and accounting would become "'one institution,
m to say, under the authority of the Comptroler and Auditor-GeneraF', it
was not necessary to have separate provision for the States. He accordingly
proposed the addition of a new article i27A about the Comptroller and
Auditor-General, requiring him to submit the report on the accounts of a
State to the Governor for being laid before the State Legislature. These
amendments were adopted without any discussion^

At the revision stage the Drafting Committee renumbered these articles
as 148 to 151. When the revised draft came up for consideration before
the Assembly, T. T. Krishnamachari moved an amendment on behalf of
the Drafting Committee'^ to introduce changes in the article relating to
the conditions of service of the staff of the Comptroller and Auditor-General.
In the form in which it appeared in the revised draft this article provided
that, subject to the provisions of any law made by Parliament, the conditions
of service of persons in the office of the Comptroller and Auditor-General
would be such as might be prescribed by rules made by him; but he was
required to obtain the approval of the Union Government for the fixation
of salaries, allowances, leave and pension. T. T. Krishnamachari’s amendment
widened the scope cf the article to include the conditions of service of all
persons serving in the Indian Audit and Accounts Department; and provided
that the conditions of service of all such persons, as well as the administrative
powers of the Comptroller and Auditor-General, would, subject to the
provisions of the Constitution and of any law made by Parliament,, be
regulated by rules made by the President after consultation with the
Comptroller and Auditor-General

This amending clause was adopted without any discussion\

’C. a: D eLAYoi-. VIII, pp. 407-8 and 414-5.
mid.. Vol. IX, p. 63.
mid.. Yol. 'Xl. pA SSt

^IMd.., ,p. 604. article 148(5) of the Constitution.

THE UNION PARLIAMENT

For A DECADE before the transfer of power in August 1947 the
constitutional framework in India was a makeshift arrangement, with
provincial autonomy under the 1935 Constitution operating under a set-up
at the Centre based on the relevant provisions of the Government , of India
Act of 1919. The Central Legislature in India was constituted in accordance
with the provisions of the latter Act : it was a Legislature with a considerable
official and nominated element and exercised no real control over the
executive. It consisted of two chambers, the Council of State and the
Legislative Assembly. Tlie Council of State had sixty members of whom
not more than twenty were officials. The Legislative Assembly had a
membership of 145 which was inclusive of a nominated element of 41 of
whom 26 were officials. The Governor-General had wide powers in regard
to the Legislature. He appointed the President of the Council of State.
The President of the Legislative Assembly was elected by the Assembly,
but the appointment was subject to the approval of the Governor-General.
The Governor-General in Council was the authority to make rules providing
for various matters relating to the composition of the Legislative Assembly
and the Council of State, including qualifications of electors, the delimitation
of constituencies, method of election, the number of members to be elected
by communal and other electorates' and all other electoral matters. The
Governor-General in Council was also the authority to make rules governing
the transaction of business in the two chambers; and the Act contained
several provisions imposing restrictions of various kinds on the powers of
the Legislature. To mention the important example of financial control,
the statute laid down that the proposals of the Governor-General in Council
for the appropriation of revenues or moneys would require to be submitted
to the Legislative Assembly in the form of demands for grants; and that
the Assembly could assent or refuse to assent to any demand. But this
power did not apply to “non-votable” items which included defence, external

Til the Legislative Assembly, there were 30 seats (out of a total of 145) elected
by Muslim voters, two from the Punjab elected by Sikhs, and nine by Europeans.
Seven members were representatives of landholders and four of Indian commerce.
The Governor-General nominated five members to represent Indian Christians, the
Anglo-Indian community, the Depressed Classes, labour interests and the Associated
Chamber of Commerce. Similarly sixteen seats out of 60 in the Council of State
were reserved for Muslims and one for a Sikh from the Punjab. Gwyenand Appadorai,
Speeches and Documents on the Indian Constitution, Vol. I, pp. 35-6.

THE UNION PARLIAMENT

affairs'; ecclesiastical affairs and tribal areas, all of which constituted a ■
high proportion of the expenditure of the Central Govemmeiit. Expenditure
on these items was not even open to discussion by either chamber' ''unless'
the Governor-General directs otherwise”. The Governor-General also 'had'
extensive powers to make laws and to "certify” aS' essential expenditure not
assented to by the Assembly..

It was the declared policy of the British Government to bring" the
Government of India 'Act,. 1935, which contemplated a federation .including
British India and the acceding Indian States, into operation in ..two stages.
For the first time provision was made for a Central Legislature to which
the executive would be partially responsible^ This part of the Act was
to be enforced on the : fulfilment of certain essential conditions specified in
its provisions. But even under this Act the area of control of the Legislature
over the executive was severely limited. What the Act visualized for the
Centre was a kind of dyarchy, with a considerabL portion of the field of
administration of the Central Government reserved for the Governor-General
acting "in his discretion” (i.e., outside the area of ministerial responsibility)
where the Governor-General was answerable to the Secretary of State for
India and through him to the Government and Parliament of Great Britain.
This discretionary area extended to' defence, external affairs, ecciesiastical
affairs and the administration of tribal areas. Expenditure required for
these purposes was not subject to the vote of the Legislature. In addition,
the construction, maintenance and operation of railways was to be entrusted
to a Federal Railway Authority which was subject to the ultimate control
of the Governor-General in his discretion. Thus control over wide and
important areas of Central administration was outside the purview of the
Federal Ministry and the Legislature. "It was only in matters , where the
Governor-General had to act on the advice of his Ministers that they were
responsible to the Legislaturel

The federal scheme and the federal executive and the legislative machinery
provided by the Act, of 1935 never came into operation. The Legislature
contemplated by the Act could, by no stretch of language, claim to be in
consonance with ideas of a fully democractic, elected body. It was to consist
of two chambers, known respectively as the Council of State and the House
of the Assembly (or the Federal Assembly)'. The Council of State was
to be composed of 260 members of whom 156 were to be representatives
from British India and 104 from the Indian States. Of the 156 seats to be
filled by representatives of British India, six were reserved, for nomination
by the Governor-General in his discretion. . The remaining 150 seats were
to be filled by election on a restricted franchise. On the basis of communal
representation, seventy-five seats were to be reserved for the Scheduled

'^Government of India Act, 1955, Part II, Chapter Ilf.

^Ibid., sections ,8, l.|, 14,„ and 33(3), (e), and Part VIIL .

■'. 'First' 'Schedulf. .

420

FRAMING OF INDIA’S CONSTITUTION

Castes, Sikhs, Muslims, Anglo-Indians, Europeans and Indian Christians.
The Federal Assembly was to consist of 375 seats of which 125 were allotted
to the federating Indian States. For the majority of the seats to be filled
from British India, the Act provided the indirect method of election, the
electorate consisting of members of the Provincial Legislative Assemblies.
The allocation of seats was by communities, with separate electorates
provided for Sikhs, Muslims, Anglo-Indians, Europeans. Indian Christians,
and women : seats were also allotted for commerce and industry, labour and
landholders. The seats allotted to the Indian States were in both the Houses
to be filled by “appointment” by the Rulers, a special procedure for grouping
being devised for the smaller States to send their representatives.

The structure and composition of the legislative institutions provided in
the previous enactments did not in these circumstances furnish any
satisfactory basis on which the Legislatures of independent India under
the new Constitution could be devised; and the Constituent Assembly had
therefore to give thought to this matter without any guidance from the past.
In his questionnaire circulated on March 17, 1947, B. N. Rau, the
Constitutional Adviser, invited opinions on various matters relating to the
Union Legislature — whether there should be a second chamber; if so, how
the two Houses should be constituted; the provision, if any, to be made for
the representation of different communities and interests; the composition,
franchise, electorate, constituencies, methods of election, allocation of seats,
term of office; the relative powers of the two Houses and the provision to
be made for resolving deadlocks*. The Constitutional Adviser also included
notes about the practice in these various matters in other constitutions,
lliese notes were supplemented by studies prepared by him on second
chambers and systems of representationl
The next stage in the evolution of the Constitution was the memorandum
on the Union Constitution prepared by B. N. Rau for the use of the Union
Constitution Committee*. This memorandum envisaged a Parliament of
the Union consisting of the President and two Houses — ^the Senate and the
House of Representatives. The suggested membership of the Senate was 280,
of whom 168 were to be from the Provinces and 112 from the Indian States,
i.e., in the proportion of three to two adopted by the Act of 1935“. The
Senate was to be a permanent body not subject to dissolution, but one-third
of its members were to retire every third year.

The composition of the House of Representatives followed that of the
Constituent Assembly. It was to consist of representatives of the Provinces
and Indian States in the proportion of not less than one representative for
every million of the population and not more than one for every 750,000,

^Select Documents, II, 13, pp. 441-7.

^Constitutional Precedents. Uhltd Senes,

^Select Documents II, 15(ii), pp. 479-85.

Part IV, clause 24 and note.

THE UNION PARLUMENT

421

the ratio adopted to be uniform throughout India. As representation was
to be based on population, provision was included in the memorandum
for a readjustment of the representation of the units on the completion of
each decennial census. The smaller Indian States were to be grouped where
necessary for the purpose of electing a member. The memorandum provided
a five-year term for the House of Representatives*.

According to the memorandum the provisions for summoning and
prorogation of Parliament, the dissolution of the Lower House, the relations
between the two Houses, the mode of voting, the privileges of members,
disqualifications for membership, parliamentary procedure including
procedure in financial matters, and other matters would follow the pattern
of the corresponding provisions in the Government of India Act of 1935. The
provision for the language to be used in the Union Parliament followed the
Constituent Assembly Rules; it was laid down that business in the Union
Parliament would be transacted in Hindustani (Hindi or Urdu) or English :
but power was given to the Chairman or the Speaker, as the case might be,
to permit any member to address the House in his mother tongue; and the
Chairman or the Speaker was also empowered to arrange to give the House
a summary of the speech in a language other than that used by the member,
for inclusion in the proceedings of the House.

Along with the memorandum, the Constitutional Adviser circulated detailed
draft clauses, giving legal shape to his proposals. A somewhat detailed
provision on the Union Legislature was also included in the memorandum
on the principles of the Union Constitution prepared by N. Gopalaswami
Ayyangar and Alladi Krishnaswami Ayyar^. The main points contained
in this memorandum were the same as those in the memorandum circulated
by B. N. Rau. But its joint authors specifically proposed that members of
the House of Representatives should be elected entirely from territorial
constituencies; and that electors should vote in joint electorates, seats being
reserved in such electorates for minority communities, in accordance with
the Constituent Assembly’s resolution on the Report of the Advisory
Committee on Fundamental Rights, Minorities, and Tribal and Excluded
Areas. The strength of the Senate was to be half that of the House of
Representatives : and the seats were to be distributed among the constituent
units in proportion to their population and filled by members of the
Legislatures of the units functioning as electoral colleges. The Senate was
to be a permanent body, one-third of its members retiring every year: the
life of the House of Representatives was five years. The memorandum
contained proposals for disqualifications for membership, procedure for the
conduct of business in Parliament, including legislative and financial business,
voting of supplies and other matters. These provisions were more or less

'^Select Documents II, I5(ii), Part IV, clause 24 and note.

mid,, II, 15(viX pp. 542-6.

422

FRAMING' OF INDIANS CONSTITUTION

on the same' lines' as laid down by the 1935 Act for the Federal Legislature.
The; meiiiorandum also proposed that, pending the enactment of. the
necessary law by the Federal Parliament, the Go-veiiimeiit would be
empowered to issue orders and directions' for the delimitation of
constituencies, the method and conduct of elections, the prohibition and
punishment of corrupt practices, decisions on election disputes and other
matters connected with elections and election procedures.

The Union Constitution Committee considered these proposals at its
meeting held on June 9, 1947b The main points which were emphasized
in the course of this meeting were :

, (1) that the two chambers should be named the Council of States and

the House of the People, these names indicating the manner in which
each chamber would be constituted;

(2) the House of the People, consisting of 4G0 to 500 members, would
be directly elected by adult franchise from territorial constituencies:

(3) the Council of States would have 250 members ;

(4) the Vice-President of India would be ex-officio a member of the
Council of States and its Chairman; if a member was elected Vice-
President he would vacate his seat ;

(5) the two chambers would, except in respect of Money Bills, have
equal powers and deadlocks would be resolved by joint
meetings;

(6) Money Bills would originate in the House of the People and the
power of the other House would be limited to making suggestions
for amendment, which the House of the People could accept ot
reject ;

(7) the life of the House of the People would be four years. The Council
of States would not be liable to dissolution, one-third of its members
retiring every two years.

A sub-committee consisting of Ambedkar, Gopalaswami Ayyangar, K. M.
Munshi and K. M. Panikkar was directed to work out the details of the
representation of the States in the Council of States. This sub-committee,
meeting on June 10, suggested that in this House the units should have
representation on the basis of one member for every whole million of the
population up to five million, plus one member for every two additional
million, subject to a total maximum of twenty for a unit. This proposal
was accepted by the Union Constitution Committee at its meeting held on
June Jl. It was recognized that this scale of representation would necessarily
inMve the grouping of the smaller Indian States.

The manner in which these representatives would be chosen was decided
by the coinmittee on June 30. They were to be elected by the Lower
Houses of the Legislatures ■ of the 'units— except for ten members to be

^Select Documents 11, 16, pp. 557-8.

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423

fiominated by the President in consultation with iin.iversities and scientiic
bodies.^

Thes.e recommendations were incorporated in the Report of the Union
Constitution Committee presented to the Constituent Assembly on^ My 21,
1947. In this report the committee also .suggested .the name ^'National
Assembly” as a composite designation for the Parliament of the Unions

These provisions were considered by the Constituent Assembly on My 28",
There was a considerable volume of opinion against having a second
chamber and several members thought that a second chamber might prove
to be a “clog in the wheel of progress”, involving expense and adding nothing
to the efficiency of work. Replying to. this criticism, Gopalaswami Ayyangar
pointed out that the need for second chambers had been felt practically all
over the world wherever there were federations. He said :

After ail, the question for us to consider is whether it performs any useful
function. The most that we expect the second chamber to do is perhaps
to hold dignified debates on important issues and to delay legislation which
might be the outcome of passions of the moment until the passions have
subsided and calm consideration could be bestowed on the measures which
will be before the Legislature : and we shall take care to provide in the
Constitution that whenever on any important matter, particularly matters
relating to finance, there is conflict between the House of the People and
the Council of States, it is the view of the House of the People that shall
prevail. Therefore, what we really achieve by the existence of this second
chamber is only an instrument by which we delay action which might be
hastily conceived, and we also give an opportunity, perhaps, to seasoned
people who may not be in the thickest of the political fray, but who might
be willing to participate in the debate with an amount of learning and
importance which we do not ordinarily associate with a House of the People.
That is all that is proposed in regard to this second chamber. I think, on
the whole, the balance of consideration is in favour of having such a chamber
and taking care to see that it does not prove a clog either to legislation
or administration^

The Constituent Assembly agreed that there should be two chambers
of the Legislature and adopted the Report of the Union Constitution
Committee, with a few, changes. First the Assembly agreed, on the suggestion
of 'R. Santhanam and Gopalaswami- Ayyangar, to the omission of the name
‘'National Assembly”: Gopalaswami Ayyangar thought it' was not necessary
to have toO' many names*. '

^Minutes of Union Constitution Committee, June 9, 11 and 30, 1947; Minutes of
Sub-Committee, Wr • Select Documents II, 16 and 17, pp. 557-63, 572.

“Report, My 4, 1947, Select Documents II, 18(i), pp. 581-3.

3C. A. Deb,, VoL IV, p. 923.

Hbid., pp. 924-8.

mid,, p. 928.

424

FRAMING OF INDIA’S CONSTITUTION

A second and somewhat lengthy amendment was moved by Gopalaswami
Ayyangar regarding the composition of the Council of States and the House
of the People. He proposed that the Council of States should have its
strength so fixed as not to exceed one-half of the memt^rship of the House
of the People. Of this membership, twenty-five were to be returned by
functional constituencies or panels on the lines of the Irish Constitution of
1937. This proposal for a panel was considered by him to be necessary
because the original suggestion of nomination from universities and scientific
bodies appeared to him much too narrow in scope and it was desirable to
get into the Council persons who, even though not belonging to universities
or scientific bodies, deserved, on account of their connection with important
aspects of the nation’s activities, to be on a body of this description. Out
of an estimated strength of 250, this small number of twenty-five members
was to be elected from these panels; the essential character of the Council
of States as originally planned (as an instrument for the effective expression
at the Parliamentary level of the point of view of the units) would neverthe-
less continue to remain and an overwhelming majority of its members would
be returned by units more or less on a territorial basis^

The members of the Council other than those chosen from the functional
panels were to be elected — 60% from the Provinces and 40% from the Indian
States, which would be grouped if necessary. The representatives of each
unit were to be elected by the elected members of the Legislature of the
unit and, where such a Legislature consisted of two Houses, by the elected
members of the Lower House.

The strength of the House of the People was to be so fixed as not to
exceed 500. The units of the Federation, whether Provinces, Indian States
or groups of Indian States, were to be divided into territorial constituencies
in such a manner that there would not be less than one representative for
every 750,000 of the population and not more than one for every 500,000.

A new clause added at the suggestion of Gopalaswami Ayyangar authorized
the Union Constitution Committee further to consider the fixation of the
actual strength of the two chambers, the distribution of the membership
among the units of the Federation, the determination of the number, nature
and constitution of fxmctional panels for the Council of States, the manner in
which the smaller Indian States should be grouped into units for purposes
of election to the two Houses, the principles on which territorial constituencies
should be delimited, and other ancillary matters. The Union Constitution
Committee was directed to submit its recommendations to the President of
the Assembly.

In pursuance of this decision, the Union Constitution Committee met again
on August 24, 1947, and considered the details of representation of Provinces
and Indian States in Parliament. The allocation of seats made by the

'C. A. Deb., Vol. IV. p. 1029.

THE UNION PAHUIAMENT

425

comaiittee at this stage was necessarily tentative. The committee decided
to recommend that both in the Provinces and the Indian States, representation
in the House of the People should be on the scale of one representative
for every 625,000 of the population. Hie three Chief Commissioners’
Provinces of Delhi, Ajmer-Merwara and Coorg were to have one
representative each ; and there would be one representative for the Andaman
and Nicobar Islands nominated by the President. For the Council of States
the committee decided to recomiiiend that the scale of representation should
be one representative for every whole million of the population of a unit
up to five million plus one representative for every additional two million
of the population, subject to a maximum of twenty-five for a unit. The
committee also decided that there should be one representative for Delhi
in the Council of States, and one for the other centrally administered areas.
The Chief Ministers of the Provinces and the Rulers of States were to prepare
schemes for the delimitation of constituencies and forward them to the
committee.

In his first draft of the Constitution prepared in October 1947, the
Constitutional Adviser gave concrete shape to these decisions. This draft
contained twerity-seven clauses and a schedule relating to the Union
Legislature^

As already decided by the Constituent Assembly, the draft provided for
a Council of States with not more than half the membership of the House
of the People. Twenty-five members of the Council were to be chosen from
functional panels. For the representation of the functional interests, the
draft provided that five panels should be drawn up before the first general
election and, thereafter, before each biennial election. These panels would
contain the names of persons with knowledge or practical experience in

(a) National language and culture, literature, art, education and such
professional interests as might be defined by an Act of the Federal Parliament;

(b) agriculture and allied interests; (c) labour; (d) industry and commerce
including banking, finance, accountancy, engineering, and architecture; and
(e) public administration and social services. Each panel was to contain at
least twice the number of members to be elected by it; and the fourth
schedule to the Draft Constitution set out detailed provisions as to the
drawing up of the panels. The actual election to the Council of States from
these panels was to be by the members of the House of the People in
accordance with the system of proportional representation by means of the
single transferable vote^

Apart from the 25 members to be chosen from these panels, the rest
of the members of the Council were to be representatives of the units. The
Union Constitution Committee had laid it down as a general principle

^Clauses 59 to BS, Select Documents III, l(i), pp. 21-36, 108 ff.
clause 60 and Fourth Schedule, paras 3-18.

FRAMIKIG . OF^'- INDIANS... COJ^^tlTUTIOK

that' the representatives; of the units would be elected by their Legislatures
and, where such ■ Legislatures were bicameral, by the Lower House.' At
the time the draft was prepared, the position of the Indian; States was very
indefinite; they were of varying sizes and many of them did not have any
Legislatures. .Accordingly the Draft Constitution as prepared by, the
Constitutional ■ Adviser provided that the representatives of each unit would—

' '(a) where the Legislature of a unit had two Houses, be elected by the
members of the Lower House; and
(b) where the Legislature had only O'lie House, be elected- by the
members of that House.

Where the unit was an Indian State and there was no Legislature in
the unit, or where the units consisted' of a group of Indian States and there
was no Legislature in ail or any of them, their representative would be
nominated by the Government of the unit or nominated in rotation by the
Governments constituting the unit.

The seats to be filled by the Chief Commissioners’ Provinces were to be
nominated by the President.

The provisions made in the Draft for the composition of the House of
the People laid down that it would consist of not more than 500 members
representing the territories of the Federation, directly chosen by the voters
on the basis of adult suffrage in territorial constituencies delimited by or
under Acts of the Federal Parliament. Seats were to be reserved for
Muslims, the Scheduled Castes and the Scheduled Tribes; and in Bombay
and Madras, for Indian Christians; while the President was authorized to
(nominate not more than two Anglo-Indians if he considered that this
community was not adequately represented. The position of the Sikhs and
the safeguards to be provided for them were matters still under discussion
at this stage, and for this reason the Draft did not contain any provision
for reservation of seats for this community. The Draft also laid down that
the scale of representation would be not less than one member for every
750,000 of the population and not more than one for every 500,000, Indian
States were given representation according to population. In the case of
the Andaman and Nicobar Islands alone was provision made for the
nomination of one member by the Federal executivel
The Fourth Schedule to the Draft Constitution, relating to the setting
up of Parliament, contained elaborate provisions to regulate all matters
relating to elections to its two Houses. It contained provisions for the
allocation of seats in the Council of States and the House of the People to
various' Provinces and Indian States. The schedule also contained detailed
provisions as to the procedure for election, franchise, qualifications, election
agents and election expenses, decision of doubts and disputes as to the

^Select Documents III, l(i), Fourth Schedule, para 5, p. 109.

^lbid„ clause 60(5), pp. 22-3.

THE .ONION, PARLIAMENT

4Tl^

^alidity of elections, disqualification for corrupt practices, and other matters.
Tlie , intention was, that the provisions made in the schedule should have
temporary effect until replaced by Acts of Parliament.

The Draft Constitution incorporated the decision of . the Constituent
Assembly that the Council of States would be a permanent body, not subject
to dissolution, with one-third of its members retiring every two years.' The
life of'" the House of the People was- laid down as four years unless it was
dissolved earlier. The President was given power to summon, prorogue
■and to send messages to both the Houses : and it was made obligatory
that each House should be summoned at least once every year. The power
to dissolve the House of the People was also vested in the President. - AH
Ministers would have the right to address either House, but they could , not
vote unless they were members of the House. The Attorney-General would
have also the right to address either House; but ,beiiig the holder of- a' paid
office, he did not have the right to vote. The Vice-President of India was to
be Chairman of the Council of States. Provision was made for an elected
Deputy Chairman to perform the duties of the Chairman when the latter
was absent or when he was performing the duties of the President; for an
elected Speaker and Deputy Speaker for the House of the People; for
proiiibiiing simultaneous membership of both Houses; for disqualifications
for membership; for the privileges and immunities of members and for their
salaries and allov/ancesh

The Draft also included provisions regarding legislative procedure,
procedure in financial matters and general procedure for the conduct of
business. No Bill could be submitted for the President’s assent unless it
had been passed in identical form by both Houses. Except in the case of
Money Bills, both Houses enjoyed equal powers; and difference between
the two Houses were to be settled by a majority vote in a joint sitting of
both Houses convened by the President^

Money Bills were defined in the Draft as comprising Bills proposing the
imposition or increase of any tax, regulating the borrowing of money by
the Governme,nt of India or the giving of financial guarantees, or declaring
any item of expenditure as ‘‘charged” on the revenues, f.e. placing it outside
the vote of the House of the People. The general principle approved by
the Constituent Assembly was that financial control over the executive
would' be - exercised by the House of the People. Accordingly the Draft
provided that Money Bills could originate only in that House. The powers
of the Council of States in the case of Money Bills were restricted to making
suggestions for amendment. If these suggestions were, not accepted by the
House of the People, or if the Council of States did not return a Bill
within thirty days with its suggestions for amendment, the Bill would be

^Select III, 1(0, clauses 60-71, pp. 22-9.

428

FRAMING OF INDIANS CONSTITUTION

■‘deemed to have beeii' passed by both Houses in the form in which it was
passed' by the House of the People” and submitted to the President for
his assent'.

■ When a ' Bill was submitted to the President for assent, he could declare
that : he assented to it, or withhold his assent or return it to Parliament
for reconsideration; but a Money Bill could not be so returnedl
:■ On': the question of voting of supplies, following the Government of India
Act, 1935, the Draft provided that an annual financial statement of the
estimated receipts and expenditure of the Federation should be laid before
both Houses, showing separately expenditure “charged” upon the revenues
of the Federation and other expenditure. “Charged” expenditure, which
was defined in the Draft, was not to be subject to Parliamentary vote; it
included such items as emoluments of the President, salaries, allowances
and pensions of Judges of the Supreme Court, debt charges, sinking fund
and redemption charges and other expenditure relating to the raising of
loans and the service and redemption of debt, and sums required to satisfy
judicial and arbitral awards. Parliament was also given the power to
declare by law any item of expenditure as a “charged” item. Expenditure
not falling in the category of charged items was to be submitted to the
House of the People in the form of demands for grants and the House
had power to refuse any demand, or to assent to or to reduce it, but not
to increase it. After all the demands had been considered and decisions
taken by the House of the People, the President was required to authenticate
a schedule specifying the grants as assented to by the House and the
sums required to meet “charged” expenditure. No expenditure could be
incurred from the revenues of the Federation except on the authority of a
schedule so authenticated. The Council of States had no powers of
voting of supplies or control over the expenditure from Federal
revenues*.

The Drafting Committee considered these provisions in detail in its
meetings held between November 1947 and January 1948Mn the meanwhile,
B. N. Rau visited the United States of America, Ireland and Britain to
study the v/orking of the constitutions of these countries; and he had
discussions with a number of eminent persons, including President Truman,
jurists in the U. S. A., President de Valera and others in Ireland*. President
Truman suggested that India should not copy the provision in the
Constitution of the United States of America for mid-term elections, as the

'Select Documents III, l(i), clauses 74-75, pp. 31-2. In the course of discussion
of the Constitution in the Assembly this period was reduced to fourteen days, vide
a A. Dekr voi vm, p. m.

^Select Documents III, l(i), clause 76, pp. 32-3.
clauses 77-81, pp. 33-4.
pp. 350-422.

W/d., Ill, 2, pp. 221-4.

THE UNION PARLIAMENT

429

election of a majority of the party opposing the President was likely to
create administrative difficulties; he also suggested that India might well
copy the provisions of the American Constitution for an indissoluble Senate,
one-third of which was ■ renewable every two years. B. 'N. Ran was able'
to tell him that the Indian Draft Constitution had already made the
President’s term of office nearly the same as that of the House of the People;
and that it provided for a permanent Upper House not subject to dissolution,
with one-third of the members retiring periodically.

President de Valera told B. N. Rau that functional representation in
the Irish Senate had given trouble and suggested its revision. He also
commented that a four-year life for the House of the People was too short.
Under the Parliamentary system of government. Ministers required at least
one year at the beginning of their term to acquaint themselves with the
details of administration, and the last year of the term was occupied with
preparations for the next general elections. De Valera therefore suggested
a term of not less than five years.

The Drafting Committee considered all these suggestions and made some
changes both in form and content in the Draft Constitution submitted to
it by the Constitutional Adviser. Consequent on its decision that India
was to be described as a Union of States (not a Federation) the name of
the Legislature of the Union was changed from “Parliament of the
Federation” to “Parliament of the Union” and in other articles it was
simply referred to as “Parliament”^ The committee fixed the strength
of the Council of States at 250: and in the light of Irish experience it
decided to delete the clauses providing for functional panels and instead
include an article empowering the President to nominate to the Council of
States fifteen members with experience or knowledge of (a) literature, art,
science and education; (b) agriculture, fisheries and allied subjects;
(c) engineering and architecture; and (d) public administration and social
services. In explanation, the committee observed :

The committee is of opinion that not more than fifteen members should be
nominated by the President to represent special interests in the Council of
States and that no special representation for labour, or commerce and
industry, is necessary in view of adult suffrage. The committee understands
that the panel system of election hitherto in force under the Irish Constitution
has proved very unsatisfactory in practice. In the absence of any other
giiidance in this matter the committee has provided for nomination by the
President in place of election, while retaining a certain measure of functional
representation. Since the committee has had to substitute nomination for
election and as the committee thinks that no special representation for
labour, or commerce and industry, is necessary, the committee is of opinion

*Draft Constitution prepared hy the Drafting Committee, art. 66, Select
Documents p, 53%. / ,

430

FRAMING OF INDIA’S CONSTITUTION

that It', would be enough to provide for fifteen nominated members^

Tlie, representatives of the States, as the elected members of the Council
of States were described, were to be elected, in the case of the States
corresponding to the Governors’ Provinces and Indian States, by the elected
menibers of each : State Legislature, or where the State had a bicameral
Legislature, by the elected members of the Lower House. 'At the time these
articles "were drafted the committee had to provide for the possibility of
some of the Indian States being without a Legislature; and in^ such cases
it was laid down that the representatives would be chosen in such manner
as Parliament might "by law prescribe. Parliament was also empowered
by law to prescribe the manner in which representatives from Part II States
(corresponding to the Chief Commissioners’ Provinces) should be chosen.

Two other changes of substance were introduced by the committee. The
term of the House of the People was extended to five years; and the
committee provided that each House of Parliament should meet at least
once every six months instead of at least once every year. The committee
expressed its; opinion accepting the experience of De Valera in Ireland that
in a Parliamentary system of government, the first year of a Minister’s
term of office would generally be taken up in gaining knowledge of the
work of administration and the last year in preparing for the next general
Selection; if the life of a Legislature was four years, there would be only
two years left for effective work and this would be too short a period for
planned administration^

The other amendments made by the committee were of a formal nature.
By way of arrangement of the articles, the provisions relating to reservation
of seats for certain minorities were omitted from the chapter dealing with
Parliament and included in a separate part of the Draft Constitution
containing special provisions relating to minorities (Part XIV)\ Another
change worth mentioning is that, while the Draft prepared by the
Constitutional Adviser had an elaborate enumeration of all the
circumstances which would disqualify a person from being a member, the
Drafting Committee adopted the simple but equally comprehensive formula
that a person would be disqualified for being chosen as, and for being, a
member of either House of Parliament—

(1) if he held an office of profit under the Government of India or
the Government of any State other than an office declared by
Parliament by law not to disqualify its holder ;
if he was of unsound mind and stood so declared by a competent
; ''court ; '

^Draft Constitution prepared by the Drafting Committee, art 66, Select Documents
in, 6, see footnote to art 67(2}, p. 539.

^1 bid., &rt 6S and 69, p. 541.

Hbid., see footnote to art 68(2).

Chapter, on Minorities.

THE UNION PARLIAMENT

(3) if he was an undischarged insolvent ;

(4) if he was under any acknowledgement of allegiance or adherence
to a foreign Power, or was a subject or a citizen or entitled to the
rights or privileges of a subject or a citizen of a foreign Power ;
and

(5) if he was disqualified by or under any law made by Parliament.

For the purposes of the article a person who held the office of a Minister

under the Government of India or the Government of any State would
not incur the disqualification arising out of the fact that he was holding
an office of profit.

The committee also omitted the Fourth Schedule in the Constitutional
Adviser’s Draft and added an article (290) empowering Parliament itself
to make laws providing for all matters relating to or in connection with
elections to the Houses of Parliament.

The provisions of the Draft relating to the Union Legislature (except
article 99 relating to the language to be used in Parliament) were discussed
in the Constituent Assembly on January 3 and 4, May 18, 19, 20 and 23
and June 8 and 10, 1949. A large number of suggestions were proposed
by way of amendment. The more important among them are dealt with
below.

Begum Aizaz Rasul wanted the Union Legislature to be called the Indian
National Congress'. Her plea was that the Indian National Congress
was a movement rather than a party and that it represented the nation’s
urge to freedom. If this name was adopted it would convey to the world
the ideals and principles for which the Congress stood. There was little
support for this name; opposing the amendment, Ananthasayanam
Ayyangar“ said that the adoption of this title might well prove to be
the death-knell of the Congress, as the Congress would no longer be able
to function as a political party and fight its way against the various
reactionary political parties which were raising their heads mostly based
on community and religion. The Assembly did not accept the suggestion.

An amendment was moved by K. T. Shah that equal representation
should be given in the Council of States to the constituent States, each of
which would elect five members by adult franchise. This suggestion was,
however, not accepted by the Assembly®.

There was some discussion on the number of seats to be allotted to the
Indian States in the Council of States. The Draft Constitution had
provided that this would not exceed 40 per cent of the total number of
elected seats*. Gopalaswami Ayyangar had implied, in his speech in the

»C. DeL, Vol. VII, p. 1196.

‘Ibid., p. 1198.

Hbid.. pp. 1214, 1230.

^Draft Constitution prepared by the Drafting Committee, Feb. 1948, . art. 67,
Select Documents 111, 6, p. Si9. .

432

FRAMING' OF- INDIANS .CONSTITUTION

Assembly on My 31, 1947, when the principles of the Union Constitution
were under consideration, that this would be the special treatment' for
Indian States in the new Parliament and that allocation of seats in the
Lower House would be on the. basis of population^ H. N. Kunzru
opposing this proposal considered that the ratio of 40 per cent was an
inducement held out to the Rulers of Indian States in 1930 and that it was
no longer applicable in present conditions^ He wanted that the allocation
of seats among States should in all cases be according to population.
Ambedkar, on behalf of the Drafting Committee, agreed with this proposal.
He moved some amendments which also covered the point raised by Kunzm.
The number of nominated members, he proposed, should be reduced to 121
His intention was that, while a total of fifteen members would be nominated
by the President, twelve of these would be persons with knowledge or
experience in letters, art, science, or the social services; as regards the other
three, he moved another amendment on May 18 that the President could
from time to time nominate not more than three persons to assist in
connection with any particular Bill introduced or to be introduced in
either House of Parliament. Such persons were to have a right to speak
in either House or in committees or in joint sessions but not to vote. On
further consideration, however, he withdraw this amendment, leaving the
number of nominated members at twelve^

The Special Committee decided that instead of four groups of persons
from amongst whom the President was to* make nominations, a simpler
terminology should be adopted, and that the nominated members should
be persons with knowledge or experience in letters, art, science or social
services^. An amendment was moved by Ambedkar to this effect\ He
also moved amendments proposing that the number 250 should be the
maximum membership of the Council of States and not necessarily its
actual strength as proposed in the Draft Constitution; that the allocation
among States of seats other than nominated seats should be incorporated
in the Constitution itself in a separate schedule; and that the proviso
allocating 40 per cent of the seats to Indian States should be omitted'.
Explaining these provisions he observed :

Members of the House will remember that this House had appointed a
committee known as the Union Constitution Committee. That committee
recommended a general rule of representation, both for people in British

A. DeK VoL IV, p. 1031.

Vol. VII, p. 1206.
mm., p. 1202.

Hbid.. Vol VIII, pp. 82-4 and 197.

""Gomments and Suggestions on the Draft Constitution, Documents IV, l(i),
p. 97.' ■ ■

Deb.. Vol VII, p. 1211.
pp. 1202, 1205.

THE UNION PARLIAMENT

433-

India as well as people in the Indian States and the rule was this : that
there should be one seat for every million up to five million, plus one seat
for every additional two million. As I said, this was to be a rule to be
applicable both to the Provinces as well as the States. But when the report
of the Union Constitution Committee came up before the Constituent
Assehibiy for consideration, it was found that the representatives of the
States had moved a large number of amendments to this part of the report
of the Union Constitution Committee. Great many negotiations took place
between the representatives of the Indian Provinces and the representatives
of the Indian States. Consequently, if honourable members
will refer to the debates of the Constituent Assembly for 31st

July 1947 my friend and colleague, Mr. Gopalaswami Ayyangar,

who moved the adoption of the Report of the Union Constitution Committee
moved an amendment that the States’ representation shall not exceed 40 per
cent. Now that rule had to be adopted or introduced in the Draft

Constitution. So far as I have been able to examine the proceedings, I
believe that this proviso of granting the States 40 per cent, representation
was introduced not so much with the aim of giving them weightage, but
because the number of States was so many that it would not have been
possible to give representation to every State who wanted to enter the Union
unless the total of the representation granted to the States had been
enormously increased. It is in order to bring them within the Union that
this proviso was introduced. We find now that the situation has completely
changed. Some States have merged among themselves and formed a larger
Union, Some States have been integrated in British Indian Provinces, and
a few States only have remained in their single individual character. On
account of this change, it has not become as necessary as it was in the
original state of affairs to enlarge the representation granted to the States,
because those areas which are now being integrated in the British Indian
Provinces do not need separate representation. They will be represented
through the Provinces. Similarly, the States which have merged would not
need separate representation each for itself. The totality of representation
granted to the merged States would be the representation which would be
shared by every single unit which originally stood aloof. Consequently, in
the amendment which I have introduced, and which speaks of Schedule 3 -A,
which unfortunately is not before the House, but will be introduced as
an amendment when we come to the schedule, what is proposed to be
done is this ; we have removed this 40 per cent ratio granted to the States
and there will be equality of representation in the Upper Chamber, both
to the Indian States as well as to the Provinces, and I am in a position to
give some figures, which, although they are not exact for the moment, are
sufficient to give a picture of what is likely to be the contents of
Schedule 3-A.

According to Schedule 3-A, the Provinces will have 141 seats. The Chief
29 :"

434

FRAMING OF INDIA’S COHSTlltJTION

Com-mlssioiiers’ Provinces will have two and the States will have seventy
altogether. Consequently, the total of elected , members to the Upper
Chamber will be 213, Add to that twelve nominated seats. That would bring
' the total to 225. Our clause, as amended, says that the total strength of
the': Council of States shall not exceed 250. You will thus see that the
allocation of seats which it is proposed to make in Schedule 3-A satisfies two
; ; conditions.; in the first place, it removes weightage and secondly it brings the
total of the House within the maximum that has been prescribed by the
.amendment that . 1 have madeh

These amendments were adopted by the Assembly. The schedule itself
was not finalized till October, 1949, by which time the process of integration
of Indian States had been completed and it was possible to proceed on
an allocation based uniformly on the population of States, except in the
case of the Part II States (corresponding to Chief CommissionersV Provinces).
It was presented to the Assembly on October 17 by T. T. Krishnamachari.
He explained that the Union Constitution Committee had gone into this
matter on December 1, 1948. The committee could not go into the details
of a revised scheme of allocation of seats in the Council of States, as
owing to mergers of various types the position of the Indian States was still
unsettled. The committee, while reiterating its previous decision that the
representation of units would be on the basis of one representative for
every million of the population up to five million of the population plus
one representative for every additional two million of the population
thereafter, considered it unnecessary to adhere to the other decision that
the maximum number of representatives from any one unit should be limited
to twenty-five. The allocation of seats was worked out on this basis,
except that for the Chief Commissioners’ Provinces ad hoc groupings and
allocations had to be adopted. The schedule as so worked out was accepted
by the Assembly without any debated Some subsequent modification to
the schedule was necessary owing to changes in the status of some of
the Indian States. These minor changes were carried out first at the time
of revision by the Drafting Committee and subsequently after the
Constitution was finally adopted, by an order of the President under the
removal of difficulties claused

Mahavir Tyagi and Mahboob Ali Baig moved amendments to provide
that the elected seats in the Council of States should be filled by the method
of proportional representation by the single transferable vote. Ambedkar
accepted this proposal and it was approved by the Assembly'^.

'C. A. Deb,, VoL VII, pp. 1226-7.

Hbid.. Vol. X, p. 407-10,

'■'Article 392 empowered the President to make modifications, additions and
omissions in the Constitution in order to remove difficulties; this power could be
exercised till the first meeting of Parliament under the Constitution.

A, VoL VII, pp. 1216 and 1231.

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435

So far as the constitution of the House of the People was concerned, the
important issue which was raised before the Assembly was an amendment
by Kazi Syed Karimuddin, that election to the House of the People should
be by the system of proportional representation with multi-member
constituencies by means of the cumulative vote’. Proportional representation
was supported by K. T. Shah and some others, though they suggested the
single transferable vote instead of the cumulative votel
In support of his plea for proportional representation Karimuddin urged
that “the one pervading evil of democracy is the tyranny of the majority
that succeeds in carrying elections and depriving the minorities of their just
share of representation”. If proportional representation was guaranteed,
the reservation of seats which at that time had been agreed upon for
important minorities could go, and without any sacrifice of democratic
principles proportional representation could afford protection to communal
minorities and, without any spirit of communalism, representatives of
political and communal minorities could be elected. K. T. Shah advocated
proportional representation not so much to protect communal minorities
as to reflect various shades of political opinion. His remedy was one
member for every 500,000 of population without any maximum strength as
proposed in the Draft: and each constituency to have at least a million voters
so that every constituency would be a multi-member constituency from which
at least two persons would be elected^ The system of proportional
representation had its opponents, among whom was H. J. Khandekar, a
representative of the Scheduled Castes. He opposed the proposal on the
ground that proportional representation and cumulative voting were only
devices motivated by a desire to secure separate communal electorates by
indirect means*. Ananthasayanam Ayyangar thought that it would be
impossible for illiterate voters to exercise their votes properly if proportional
representation was adopted”. Ambedkar also opposed it on the ground that
this method of election presupposed literacy on a large scale and it would
not be practicable in a country like India where literacy was perhaps the
smallest in the world*. He made particular reference to the argument that
proportional representation would serve as an alternative to reservation of
seats for minorities. He said that the question of reservation of seats for
important minorities was a decision taken at an early stage in the course of
constitution-making and had the support of all the important . communities.
A decision of this nature could be reversed with the consent of the
communities concerned; but it would not be proper by introducing a device

•C. /I. Vol. VII, p. 1233.

^bid., p. 1236. V

Hbid.

Hbid., p. 1252.

nbid., p. 1259.

‘Ibid p. 1261.

436

FRAMING OF INDU’S CONSTITUTION

like proportional representation to take away by the back door what had
been conceded to them by agreement^. The amendment was negatived by
the Assembly.

While providing for a life of five years for the House of the People,
unless sooner dissolved, the Drafting Committee gave power to the President
during an emergency to extend the life of the House by a year at a time^
An amendment was proposed that this power should be vested in Parliament
and not in the President. Commenting on this amendment the Constitutional
Adviser observed that in Britain the extension of the life of Parliament
even in time of war required an Act of Parliament^ Adopting this lead
Ambedkar himself moved an amendment taking this power away from the
President and conferring it on Parliament*. He explained that the extension
of the life of the House of the People was so much of an invasion of the
ordinary constitutional provisions that an Act of Parliament would be
necessary for the purpose; in his opinion even a resolution or a motion
for the purpose would be inadequate. This was accepted.

During the consideration of the provisions of the Draft Constitution the
Drafting Committee proposed an amendment for laying down qualifications
for membership of Parliament. The Constitutional Adviser referred to the
strong feeling that some qualifications should be prescribed for members
of Parliament*. In his opinion these qualifications should be so precisely
formulated that an election tribunal would be able to say in a particular
case whether or not the candidate satisfied them. To formulate such precise
and adequate standards would take time : further, if any such qualifications
were laid down in the Constitution itself it would be difficult to alter them
if circumstances required. He suggested accordingly that the best course
would be to insert an enabling provision in the Constitution and leave it
to the appropriate Legislature to define necessary standards later. The
new article moved by Ambedkar in this matter provided that in order to
be qualified for being chosen as a member of Parliament, a person should
be a citizen of India, not less than 25 years old in the case of the House of
the People and 35 for the Council of States (this latter requirement was
reduced to 30 years on an amendment moved by Shrimati Durgabai) and
should fulfil such other qualifications as might be prescribed in a law made
by Parliament*. The Assembly accepted this amendment.

‘Ambedkar was here dealing with the proposal of Karimuddin for election by
proportional representation. The issue of reservation of seats for minorities in
Parliament and State Legislatures is dealt with m the Chapter on Minorities.

“Draft Constitution prepared by the Drafting Committee, art. 68 (now art. 83), Select
Documents III, 6, p. 541.

’Comments and Suggestions on the Draft Constitution, Select Documents IV, l(i),
p. 98.

‘C. A. Deb., Vol. Vni, p. 85.

'‘Select Documents IV, l(i), p. 98.

‘C. A, Deb., Vol. VIII, p. 89, new article 68-A (now art 84).

THE,. UNION PARLIAMENT

437

In the course of discussion K. T. Shah moved an amendment in favour
of Parliament being in continuous session*. H. V. Kamath moved a similar
amendment providing for a minimum number of three sessions every year
instead of two. Ambedkar agreed that the possibility of the Government
calling a session once a year primarily for the purpose of collecting revenue
did exist under the Government of India Act. 1935, but in the new
conditions sessions of Parliament would be more frequent, since the
Government was responsible to the people. In fact, his fear was that
sessions of Parliament would be so frequent and so lengthy that members
would probably themselves get tired of them. The reason was that the
Government would be responsible not only for good administration but
also for giving effect to legislative measures necessary for implementing the
party programme. He suggested, therefore, that the two sessions every year
proposed by him were sufficient by way of a minimum*.

K. T. Shah moved an amendment that where the life of Parliament was
extended in conditions of emergency, the life of the new House of the
People elected on dissolution should only be for the balance of the period
of the normal tenure. He gave two reasons in support. First, a dissolution
immediately after an emergency would be in conditions of stress and the
House of the People would not reflect the normal sentiment of the people;
secondly the proposal would maintain the five-year cycle unaffected by
the interruption caused by an emergency*. T. T. Krishnamachari opposing
the amendment pointed out that, if it was adopted, the life of the House
of the People elected ^ter an extension would be indefinite. Ambedkar
added the further argument that a general election was a process involving
tremendous cost. Referring to Shah’s first argument he said that various
circumstances might cause an unhinging erf men’s minds from their
moorings and war was only one of them. He suggested therefore
that the position might be left as it was in the Draft Constitution. This
view was accepted by the Assembly and the amendment was
negatived*.

T. T. Krishnamachari moved two new articles providing that when the
Council of States was discussing any resolution for the removal of the Vice-
President (who was ex-officio Chairman) or its Deputy Chairman, or when
the House of the People was discussing a similar resolution about the
Speaker or the Deputy Speaker, the functionary to whom the motion related
would not be competent to preside over the session*. These additions
were adopted. At the revision stage the Drafting Committee added another

’C. A. Deb.. Vol. VIII, p. 95.

‘Ibid: pp. 97, 104-5.

‘Ibid: pp. 85-6.
pp. 88-9.

“New articles 75-A and 78-A (now articles 92 and 96). C. A. Deb., Vol. VIII,
pp 120-1; 124-5.

438

FRAMING OF INDIA’S CONSTITUTION

clause: giving the right to speak (but not to vote) to the person against
vi^hom such a resolution was directedh

Ambedkar moved a new article providing for a separate Secretariat staff
for each House of Parliament. This matter had been raised by a conference
of the presiding officers of the various Legislatures in India. Ambedkar
recalled that it was the practice in India for the executive Government to
furnish secretariat help to the Legislatures: and that a conflict in this
matter arose in the late twenties between the President of the Central
Legislative Assembly (Vithalbhai Patel) and the Government of the day.
As a result a separate Secretariat under the control of the presiding officer
was set up for that Assembly. But this practice was not adopted by the
Provinces. Ambedkar thought that it was necessary to provide for this
matter in the Constitution itself". There was general support for the
substance of the article which was adopted.

There was an interesting discussion on the article (draft article 85)
relating to the privileges of members of Parliament. As settled by the
Drafting Committee, the article declared that, subject to the rules and
standing orders regulating the procedure of Parliament, there would be
freedom of speech in Parliament; that no member of Parliament would be
liable to any proceedings in any court in respect of anything said or any
vote given by him in Parliament or in any committee of Parliament; and
that no one would be Uable for any authorized publication of any report,
paper, votes or proceedings. In other respects, the article said, the privileges
and immunities of members of the Houses of Parliament would be such
as were enjoyed by the members of the House of Commons of the
Parliament of the United Kingdom at the commencement of the Constitution.

This draft article was discussed in the Assembly on May 19, 1949. H. V.
Kamath moved an amendment which sought to provide that, until provision
was made by Act of Parliament, the privileges enjoyed by members of the
Houses would be the same as those enjoyed by members of the Dominion
Legislature of India, thus omitting the reference to the House of Commons.
K. T. Shah moved a comprehensive clause which declared that, in all
matters of privilege of either. House of Parliament or of the members thereof,
the House concerned would be the judge and that any order, decree or
sentence duly passed by the House would be enforced by the officers or
under the authority of the House. Kamath considered that it would be
derogatory to the dignity of the Constitution to make references to practice
and ■ procedures prevailing in other countries and thought it would be
appropriate for the Indian Constitution to rely on its own precedents. Shibban
Lai Saxena and P. S. Deshmukh suggested that an appendix should be
compiled and included in the Constitution listing the various privileges.

‘Draft Constitution as revised by the Drafting Committee, November 3, 1949,
Select Documents IV , pp. 176-^.

“Article 79-A (now article 98): C. A. Deb„ Vol. IX, pp. 2-9.

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439

Ailadi Krishnaswami Ayyar replied to these poiats. From the practical
point of view, he said, the provision as set out in the Draft Constitution,
was essential. If the privileges were confined to existing privileges of
Legislatures in India, the result would be that a person could not be punished
for contempt of a House: whereas the Parliament in Great Britain had the
inherent right to punish for contempt. If there was the time to formulate
all the privileges in a compendious form, that would be the best solution ;
but this had not been done. In fact, Ailadi Krishnaswami Ayyar pointed
out, a committee constituted by the Speaker of the Assembly On the
legislative side had found it very diflScult to formulate the privileges unless
they went in detail into the whole question of the working of parliamentary
institutions in the United Kingdom. There was no question of there being
anything derogatory in a provision of this kind. Further, he said, the
future Parliament of India could frame its own list of privileges. It could
enlarge the privileges, it could curtail them, or at its option it could have
a different kind of privileges. Ailadi Krishnaswami Ayyar also confirmed
that Australia had a similar provision. In these circumstances, he suggested
the adoption of the article as framed by the Drafting Committee.

Shibban Lai Saxena and Lakshmi Kant Maitra pointed out that immunity
from proceedings in any court would be available only for reports published
under the authority of either House. They wanted the immunity to be
available even when publication was made without the authority of a
House of Parliament.

These suggestions were not accepted by the Assembly, and the article was
adopted as framed by the Drafting Committee, with an amendment moved
by Jaspat Roy Kapoor, which extended the scope of these immunities to
speeches and statements made in committees of either House*.

Lokanath Misra moved an amendment which made it explicitly clear
that where the President returned a Bill to Parliament for reconsideration,
it would be incumbent on him to assent to it if the Bill was again passed
by Parliament with or without amendment. This was adopted.

K. T. Shah moved an amendment that if the President defaulted in
convening a session of either House for a period of three months, the
Speaker or the Chairman, as the case might be, should have the power to
do so. The impracticability of this provision was pointed out by
Ambedkar. The business of the House was to be provided by the executive
and it would, therefore, serve no purpose merely to give to the presiding
officer power to summon a meeting of the House without making proper
provision for the business to be transacted’.

An interesting suggestion was made by K. T. Shah that the election
expenses of all candidates standing for election should be paid from the

*C. A(. Dei., Vol. VIII, pp. 144-56.

-Ibid., pp. 191-5, proviso to article 91 of draft (now article 111).

VWd., pp. 99 and 106.

440

FRAMING OF INDIA’S CONSTITUTION

public exchequer according to a prescribed scale, such payment to be
forfeited if the candidate failed to poll 10 per cent of the votes. The
Assembly did not, however, accept this amendment'.

The Draft as placed before the Constituent Assembly prohibited
simultaneous membership of both Houses of Parliament but not
simultaneous membership of a House of Parliament and a House of a
State Legislature. To remove this anomaly Ambedkar moved an appropriate
amendment during the consideration stage, and this was approved^.

A series of amendments was moved by Ambedkar on June 8, 1949
regarding the voting of supplies. In the Draft Constitution as prepared
by the Constitutional Adviser, the procedure laid down for the voting of
supplies was that, apart from charged expenditure, the sums required for
Government spending would be placed before the House of the People in
the form of demands for grants; and such demands as were accepted by
that House would be included, along with the statement of charged
expenditure, in a schedule authenticated by the President. This schedule
would constitute the authority for incurring expenditure. The task of
ensuring that expenditure conformed to sanctions was a function specifically
placed on the Comptroller and Auditor-General. These provisions were
adopted by the Drafting Committee and incorporated in the Draft placed
before the Constituent Assembly.

Commenting on these provisions, the Expert Committee on the financial
provisions observed ;

It is usual in written democratic constitutions to provide that no money can
be drawn from the treasury except on the authority of the Legislature
granted by an Act of appropriation. In this country, the practice has been
to authorize expenditure by resolutions of Government after the demands
have been voted, and not by law. As the existing practice has been working
well in this country, appropriation by law does not appear to be
necessary’.

Subsequently, the Drafting Committee in consultation with the Finance
Minister of the Government of India gave careful consideration to the entire
question of expenditure from public funds and the result of this was explained
to the Assembly by Ambedkar on June 8, 1949’. In the course of his speech,
Ambedkar explained that it had been decided to include an express
provision in the Constitution that there should be no taxation without law.
It was also proposed to establish a Consolidated Fund of India comprising
“all revenues received by the Government, all loans raised by the Government
by the issue of treasury bills, loans or ways and means advances, and all
moneys received in repayment of loans”. Consequent on the creation of a

’C. .4. Deft., Vol. VIII, p. 115.

‘Ibid., pp. 133 and 136-7.

’Report, para 79. Select Documents III, 4(iii), pp. 281-2.

‘C. A. Deb.. Vol. VIII, p. 723,

THE UNION PARLIAMENT

441

Consolidated Fund, Ambedkar proposed that the appropriation of public
moneys by way of expenditure should be not as proposed in the Draft
Constitution, on the authority of a schedule authenticated by the President,
but on the basis of an Act of Parliament^

Accordingly amendments were proposed to provide that the various stages
in the matter of expenditure from public revenues would be as follows : first, an
annual financial statement containing the estimated receipts and expenditure
of the Government would be laid before both Houses of Parliament, showing
separately the expenditure "'charged” on the Consolidated Fund of India and
the sums proposed to be spent on items other than ‘"charged” items. Both
Houses of Parliament could discuss the annual financial statement; the
charged items would not be subject to the vote of either House: and the
other items would be: submitted to the House of the People in the form
of demands for grants, showing the various amounts proposed to be spent
under specified heads and subjects. The House would have the power to
agree to a demand or to refuse to pass a demand or to reduce the amount
of a demand ; but it would have no power to increase any particular demand.
After the demands for grants were passed by the House of the People, the
charged items and the demands voted by the House would be incorporated
in an Appropriation Bill which would follow the procedure laid down
for ordinary legislation; subject to the condition that at this stage it would
not be permissible to move an amendment varying the amount or the
""destination” of any grant. The Appropriation Bill would be a ""Money Bill”
and therefore the final decision in regard to its form and content would vest
in the House of the People.

Ambedkar also moved amendments proposing that the same procedure
should be followed for providing funds for supplementary and excess
expenditure which could not be foreseen at the time of the annual financial
statement.

Yet another amendment moved by him at this stage related to a ""vote
on account”l He wanted that full discussion should be provided for in
Parliament on the financial statement and on the Governmenfs taxation
proposals and proposals for expenditure. The traditional practice in India
was (and continues to be) that the budget proposals are placed before the
Legislature on the last day of February each year; and the financial year
runs from April 1 to March 31. Since these discussions might not be
completed before the beginning of a financial year, Ambedkar moved a new
article enabling Parliament to vote a lumpsum grant under each demand
sufficient to enable the Government to incur expenditure for a short period

^Amendment to articles 90, 92, 93, 94, 95 of the Draft Constitution as prepared
by Drafting Committee (now articles 110, 112, 113, 114, 115). C, A, Deb., Vol. VIII,
pp. 723-44 and 747-71.

“Amendment to article 96 of Draft Constitution (now article 116). C. A. Deb., VoL
VIIL'pp. 771-4. ■■■■', ■ ■ ■

442

FRAMING OF INOIA’S CONSTITUTION

until the taxation and expenditure proposals were discussed in full and an
Appropriation Act was passed. The Assembly accepted all these
amendments.

The provision regarding the language to be used in Parliament was not
taken up for consideration until as late as September 17, 1949'. The language
issue had always been a very controversial one and the question of the
language to be used in Parliament was postponed until a decision had been
reached on the general issue of language. This general issue was considered
and decided on September 15, 1949. According lo the decision of the
Constituent Assembly the official language of the Union was to be Hindi

in the Devanagari script, but for a period of fifteen years English was to

continue to be used for all official purposes of the Union for which it was
being used before the commencement of the Constitution. Even after the
lapse of this period it would be open to Parliament to provide by law for
the continued use of English for such purposes as might be specified in the
law. The Ixgislature of a State could by law adopt any one or more of

the languages in use in the State or Hindi as the language or languages to

be used for all or any of the official purposes of the State: and until such
law was enacted the use of English was to continue.

On September 17, 1949, Ambedkar moved an amendment to article 99
(relating to the language to be used in Parliament) to the effect that for a
period of fifteen years from the commencement of the Constitution, business
in Parliament would be transacted in Hindi or in English. The amendment
also empowered the Chairman of the Council of States or the Speaker of
the House of the People to permit any member who could not adequately
express himself in Hindi or English to address the House in his mother
tongue. After this period of fifteen years, it would not be permissible to
transact any business in Parliament in English unless Parliament by law
provided otherwise. There was general support for the proposal and it was
passed without any amendment.

At the revision stage, some changes consequent on political developments
in regard to the Indian States were made by the Drafting Committee, who
incidentally also rearranged the articles. The process of integration and
merger had by this time been completed: many States had been merged in
the Governors’ Provinces: some had been constituted into Chief
Commissioners’ Provinces: and the States remaining as Part III States were
Hyderabad, Jammu and Kashmir, Madhya Bharat, Mysore, Patiala and
East Punjab States Union, Rajasthan, Saurashtra, Travancore-Cochin and
Vindhya Pradesh (Vindhya Pradesh was subsequently constituted into a
Chief Commissioner’s Province). All these States (except Jammu and
Kashmir) were to have Legislatures of their own set up under the provisions
of the Constitution. The Drafting Committee renumbered Parts I, II and

'C. A. Deb., Vol. IX, pp. 1666-8.

THE UNION PARLIAMENT

443

III of the First Schedule as Parts A, B and C — Part A comprising the
Governors’ Provinces, Part B the Indian States and Part C the Chief
Commissioners’ Provinces. In the light of these changes, the provisions for
election to the Council of States wsre modified and it was now provided
that all elected representatives in this body from such Part A and Part B
States as had two chambers would be elected by the Legislative Assemblies
of these States: and that Parliament by law would provide for the
representation of Part C States. The number of representatives to be
returned from each of these States was also included in the Fourth Schedule.
The special provision that Parliament by law would decide the representation
of States which had no Legislature became unnecessary and was deleted.
Some other drafting changes were also made at this stage, and with these
changes the articles relating to the Union Parliament were incorporated
in the Constitution as articles 79-122.

NOTE ON AMENDMENTS

Article 80 : Constitution (Seventh Amendment) Act, 1956, made some

amendments to this article, consequent on the description of the units
comprising the Indian Union as “States” and “Union territories”.

Sub-clause (b) of clause (1) of the article was amended by the substitution
of the words

(b) not more than two hundred and thirtyeight representatives of the
States and of the Union territories,
for the words

(b) not more than two hundred and thirtyeight representatives of the States.

Clause (2) was also amended to provide that the Fourth Schedule would
contain the allocation of seats among the “States and the Union territories”.

The Fourth Schedule was also amended from time to time, as a
consequence of the fonnation of new States and Union territories. There
was also an increase in the elected membership of the Council of States
from 205, when the Constitution was adopted in 1949, to 226. Tlie Union
Territories of Andaman and Nicobar Islands, the Laccadive, Minicoy and
Amindivi Islands, Dadra and Nagar Haveli, and Goa, Daman and Diu are
not represented in the Council of States.

Clauses (4) and (5) of article 80 were also amended to provide that

(1) the representatives of the States in the Council of States would be
elected by the elected members of the Legislative Assemblies of the
respective States in accordance with the system of proportional
representation by means of the single transferable vote ;

(2) the representatives of the Union territories would be chosen in such
manner as Parliament might by law prescribe.

Articles 81 and 82: (1) Article 81 as adopted by the Constituent Assembly
in 1949 prescribed a maximum membership of 500 for the House of the

444

FRAMING OF INDU’S CONSTITUTION

People and also that the scale of representation should be not less than one
member for every 750,000 of the population and not more than one member
for every 500,000. With the increase of population it appeared that it vsfould
not be possible simultaneously to satisfy the two conditions that there should
be not less than one member for every 750,000 of the population and an
absolute maximum of 500 members. Hie Constitution (Second Amendment)
Act, 1952, accordingly deleted the requirement that there should be not less
than one member for every 750,000 of the population.

(2) With the Constitution (Seventh Amendment) Act, 1956, which abolished
the categorization of Indian territory as States in Parts A, B, and C of the
First Schedule and introduced the new nomenclature of “States” and “Union
territories”, the phraseology adopted in article 81 that “the States shall be
divided, grouped or formed into territorial constituencies” required
amendment. Accordingly a formal drafting amendment was made to articles
81 and 82 and the articles redrafted to provide as follows

The House of the People should have not more than 500 members chosen
by direct election from territorial constituencies in States ; and not more
than twenty members to represent Union territories, to be chosen in such
manner as Parliament might by law provide. The number of seats allotted
to each State would correspond to the population of the State. Each State
would be divided into territorial constituencies and the ratio in each
constituency between its population and the number of seats would be
uniform throughout the State.

Upon the completion of each census the allocation of seats to the States
and the division of each State into territorial constituencies would be
readjusted in accordance with Parliamentary law.

The Constitution (Fourteenth Amendment) Act, 1962, increased to twentj'-
five the number of seats to be assigned to Union territories.

Articles 84, 85 and 87 : (1) The Constitution (First Amendment) Act,
1951, made some changes in articles 85 and 87. The amended article 85
required that the President should summon each House of Parliament to
meet within six months of the last sitting of a session. The amended article
87 required the President to address both Houses of Parliament at the
commencement of the first session after a general election as well as each
year, and not at the commencement of every session, as under the original
article.

(2) The Constitution (Sixteenth Amendment) Act, 1963, amended clause
(a) of article 84 by requiring that any one, in order to qualify for election
to Parliament, should make and subscribe an oath or affirmation that he
would bear true faith and allegiance to the Constitution of India and uphold
the sovereignty and integrity of India.

Article 112(3): The words “a Rrovince corresponding to a State specified
in Part A of the First Schedule” were changed to “a Governor’s Province of
the Dominion of India” by the Constitution (Seventh Amendment) Act, 1956.

STATE LEGISLATURES

The questionnaire- which was- circulated by the Coustitutional Adviser
on March 17, 1947, regarding the Union Legislature also served as the
basis on which opinions were invited on matters relating to the constitution,
franchise and other provisions! to be made in regard to the State Legislatures.
Again, as in the case of Parliament, not many replies were received; but
these few repliesi showed a general consensus in favour of universal adult
suffrage, reservation of seats for the recognized minority communities
(Muslims, Sikhs, Anglo-Indians, Indian Christians and Scheduled Castes)
and joint electoratesh

The memorandum on the principles of a model Provincial Constitution
circulated on May 30, 1947, by the Constitutional Adviser provided for a
Legislative Assembly for every Stated Elections were to be from territorial
constituencies on the basis of not more than one member for every 100,000
of the population. The normal life of the Assembly was fixed at five years.
A note was added that under the Government of India Act, 1935, the
Provinces of Madras, Bombay, Bengal, the United Provinces, Bihar and
Assam had two chambers in their Legislature ; and the memorandum made
the point that the question whether there was to be a second chamber in
any State, and, if so, how it was to be constituted, would probably have
to be left to the decision of the representatives of that State in the
Constituent Assembly. In, case there was to be a second chamber for any
State, it was to be designated “Legislative Council’’. A further suggestion
was made that the question whether there should be special representation
for universities, labour, women, etc. should also be left to the decision of
the representatives from the States.

The memorandum proceeded on the assumption that provisions for the
meeting, prorogation and dissolution of the Assembly, the relations between
the two chambers (in States where there was to be a Legislative Couneil),
the mode of voting, the privileges of members, the disqualifications for
membership, parliamentary procedure, including procedure in financial
matters, and other cognate subjects would be on the lines of the corresponding
provisions in the Government of India Act, 1935.

^Select Documents 11, 21(1% pp. 626-9.

the earlier stages of drafting of the Constitution, the units were designated as
Provinces; it was not until the Draft Constitution of February 1948 was prepared
by the Drafting Committee, that the term “Province” was dropped and the expression
“State” adopted. For convenience they are referred to as States generally in this chapter.

446

FRAMING OF INDIA’S CONSTITUTION

The memorandum contained a paragraph regarding the language in
wMeh busliiess was to be transacted in the Legislature: it would normally
be in Hindustani (Hindi or Urdu) or English, with discretion to the presiding
officer to permit any member who could not adequately express himself in
either language to address the chamber in his mother-tongue. The Chairman
(where, there was a second chamber),, or the .Speaker, was authorized,
wherever he thought fit, to make arrangements for giving to the chamber
a summary of such a speech ""in a language other than^ that used by the
member’'. Such summary was to be included in the records of the proceedings
of the chamber. No provision was made at this stage for the use of a
State language in the normal course for the conduct of proceedings in the
State Legislature*'.

The memorandum also included a clause empowering the Legislature to
enact from time to time laws providing for the delimitation of territorial
constituencies, the qualifications for franchise and the preparation of
electoral rolls, the qualifications for being elected as a member of either
chamber, the filling of casual vacancies in either chamber, the conduct of
elections and the methods of voting thereat, the expenses of candidates at
such elections, corrupt practices and other offences at or in connection with
such elections, the decision of doubts and disputes arising out of or in
connection with such elections, and other ancillary matters. The
superintendence, direction and control of elections, including the appointment
of election tribunals, were to be vested in the Governor acting in his
discretion, but subject to the approval of the Council of Statel
The Provincial Constitution Committee considered these matters in June
1947. The committee decided that as a general rule, there should be only
a single chamber of the Legislature in the States. This chamber was to
be called the Legislative Assembly and representation of the different
territorial constituencies was to be on the basis of population on a scale
of not more than one representative for every hundred thousand of the
population, with a minimum of fifty members. On the question of second
chambers, the committee agreed that they might be constituted in States
where special circumstances existed'* : and in its report it added a note
that the members of the Constituent Assembly from each State should vote
separately and decide whether an Upper House should be set up in that
State". . .

Memorandum on the principle's of a mode! Provinciai Constitution. ScfecI
DocMme/i/.s’ II, 2l(u), pp. 636-8.

2The Council of State was an organization meant to be in the nature of a Privy
Council which was to be set up in order to advise the President in matters in which
he was to act in his discretion. The idea Was, however, given up, (See Chapter on
Union Executive). ■ V'

Minutes, June 6; 1947. Seteci Ddeumenis II, ll/p, ^6^

'^Report, June 27, 1947. Select Documents ll, 24(i), p. 660.

THE STATE LEGISLATURES

447

A sub-committee consisting of B. G. Kher, Pattabhi Sitaramayya,
P. Subbarayan and Kailash Nath Katju went into the question of the
composition of second chambers for States where a second chamber was
desired. This sub-committee recommended that the numerical strength of
the second chamber in a State which decided to have one should not be
more than a quarter of the strength of the Legislative Assembly, and that
there should be, within certain limits, functional representation on the lines
of the Constitution of Ireland. The composition of the second chamber
should accordingly be as follows : one-half to be elected on functional
representation on the Irish model, one-third to be elected by the Legislative
Assembly of the State by the method of proportional representation, and
one-sixth to be nominated by the Governor on the advice of his Ministers.
The minimum age of a member was fixed at 35*.

These proposals were accepted by the Provincial Constitution Committee^
The committee further recommended that the life of the Assembly might
be fixed at four years instead of five. On the question of language the
recommendation of the committee was that business should be transacted
in the State language or languages or in Hindustani or in English. The
Chairman or the Speaker was authorized to make arrangements for giving
the House a summary of the speech in a language other than that used
by the member. There was to be no special representation for universities,
labour or women.

The Provincial Constitution Committee also accepted the proposals of
the Constitutional Adviser —

(i) that the provisions for tihe meeting, prorogation and dissolution
of the Provincial Legislature, the relations between the two Houses
(where there were two Houses), the mode of voting, the privileges
of members and other similar matters would be on the lines of the
corresponding provisions in the Act of 1935;

(ii) that the Provindali Legislature might from time to time make
provisions with respect to the delimitation of territorial constituencies,
qualifications for the franchise, the preparation of electoral roils and
the conduct of elections; and

(iii) that the superintendence, direction and control of elections,
including the appointment of election tribunals, should be vested in
the Governor acting in his discretion (omitting the reference to the
approval of the Council of State being required).

The committee also laid down the requirement that no member of a
Legislative Assembly should be less than 25 years of age and no member
of a Legislative Council should be less than 35 years of age’.

The recommendations of the Provincial Constitution Committee were

^Sub-Committee miuutes, June 10, 1947. Select Documents II, 23(ii), p, 655.

“Minutes, June 11^ 1947. Select Documents Jl, 22, p. 652.

’Report, paras 19 and 21. Select Documents II, 24(i), pp. 660-1.

448

FRAMING OF INDIA’S CONSTITUTION

discussed by the Constituent Assembly oa July 18 and 21, 1947, and
were adopted with ■ some amendments'. Some of these were formal, but
four changes were of importance. In the first place, a minimum membership
was prescribed of 60 and a maximum of 300 for an Assembly. On the
suggestion of AUadi Krishnaswami Ayyar, the Assembly accepted a clause
specifically providing that, until the State Legislatures provided ■ for this
matter, the powers, privileges and immunities of the members would be
the same as those of members of the House of Commons. In moving this
amendment he explained that under the Government of India Act, 1935,
the privileges of the members were restricted. The Legislature had no power
to punish its own members and there were various other restrictions. He
was of the opinion that the Legislatures of independent India should possess
plenary powers such as those possessed by the House of Commons, without
prejudice to the Legislatures themselves later making their own provisions.
He added:

If there is any feeling that in an independent India’s Constitution there need
not be any reference to the House of Commons, later on we might collect
ail the materials with reference to the privileges of the House of Commons
and they might be substituted. For the present I would press this, because
The House of Commons is the Assembly which has the widest privileges of
all the Assemblies of the world^.

In view of the fact that the Union Constitution Committee’s Report
would contain a provision to set up an all-India Election Tribunal, with
powers of supervision and control over Federal as well as State elections,
an amendment moved by K. M. Munshi to remove this matter from the
purview of the Governor in Ms discretion was also adopted".

The fourth change was an amendment by K. Santhanam which proposed
that the Governor of a Province in which the Legislature consisted of a
single chamber would have the right to return, in his discretion, a Bill
passed by the Legislature for reconsideration and could suggest amendments.
If however the Bill was again passed by the Legislature with or without
amendments by an absolute majority the Governor had to assent to it.
Explaining the object of his amendment, Santhanam said that, though he
was in favour of full autonomy and Ml responsible government in every
State, he wanted to give power to a Governor to send back for
reconsideration a Bill passed by the Legislature; this was to give the
Legislature an opportunity to reconsider hasty legislation passed by a snap
vote or a narrow majority. If after reconsideration the Legislature decided
to pass it by an absolute majority, the Governor would be precluded from
exercising his veto, Santhanam made two other points on the amendment.
First, the power would not be available in a State with a bicameral

1C. A, Deb., VoL IV, pp. 579 E
'/Md., p. 689.

Hbid,, p. 693.

THE STATE LEGISLATURES

449

Legislature, because in sucli a State the second chamber would exercise the
revisory power. Again, the power to return for reconsideration was to be
exercised by the Governor in his discretion because obviously a Ministry
which rushed a Bill through by a narrow majority would not care to advise
reconsideration'.

In pursuance of these decisions B. N. Rau, the Constitutional Adviser,
included the relevant provisions in his Draft Constitution of October 1947.
The Part relating to State Legislatures contained 30 clauses and a schedule'.
The Legislative Assemblies were to be composed of members chosen by
direct election on the basis of adult suffrage from territorial constituencies
on a scale of not more than one representative for every 100,000 of the
population, except in the case of the autonomous districts of Assam, where,
adopting the recommendation of the North-East Frontier (Assam) Tribal
and Excluded Areas Sub-Committee^ a higher quantum of representation
was permissible. Seats were to be reserved for

(a) the Muslim community, the Scheduled Castes and the Scheduled
Tribes;

(b) the Indian Christian community in the Legislative Assemblies of
Madras and Bombay;

(c) the tribal districts in the Legislative Assembly of Assam where
autonomous District and Regional Councils were proposed to be set up'.

A maximum membership of 300 and a minimum of 60 were prescribed.
A membership of one-fourth of the strength of the Legislative Assembly
was provided for the Legislative Councils in States deciding in favour of
such chambers.

Following the Provincial Constitution Committee’s Report, as adopted by
the Constituent Assembly, one-half of the membership of the Legislative
Councils was to be chosen from panels of persons having knowledge or
practical experience of (a) the national language and culture, literature, art,
education and such professional interests as might be defined by an Act
of the State Legislature ; (b) agriculture and allied interests ; (c) labour ;

(d) industry and commerce including banking, finance, accountancy,
engineering and architecture; and (e) public administration and social services.
One-third was to be elected by the members of the Legislative Assembly
by the method of proportional representation by means of the single
transferable vote; and the balance of one-sixth was to be nominated by
the Governor. The Council was to be a permanent body, one-third of its
members retiring every two years as in the case of the second chamber of
Parliament.

^C. A. Deb: Vol. IV, p. 704.

’Clauses 129-158 and Sixth Schedule. Select Documents III, I(i), pp. 50-64, 136-60.

’C. Vol. Vn, pp. 103 ff.

‘The question of reservation of seats for the Sikhs was still under consideration at
this stage.

450

FRAMING OF INDIA’S CONSTITUTION

For the rest, the provisions relating to the State Legislatures generally
followed the corresponding provisions for Parliament, with suitable drafting
modifications applicable to States with a single chamber of Legislature. As
in the case of Parliament, a schedule (Sixth Schedule) contained detailed
provisions for elections. These were to be in temporary operation until
the necessary laws were enacted by the respective Legislatures.

In the Draft Constitution of October, 1947, there was one substantial
difference between the powers of the two Houses of Parliament and the
two Houses of State Legislatures. The provisions relating to Parliament
laid down a special procedure in respect of Money BiUs. Money Bills were
defined as Bills which made provision for imposing or increasing any tax,
for regulating the borrowing of money or the giving of guarantees by the
Federal Government, or for amending the law with respect to any financial
obligations undertaken by the Federal Government or for declaring any
expenditure to be expenditure charged on. the revenues of the Federation
or for increasing the amount of any such expenditure. In respect of Money
Bills the powers of the Council of States were limited to making
recom me ndations for amendment, and if any such recommendation was not
accepted by the House of the People, the BiE would be submitted to the
President in the form in which it was approved by the House of the People,
and the President had no power to return it for reconsideration. Such a
special provision was not included in the case of the State Legislature, with
the result that, in accordance with the Draft Constitution differences of
opinion in aE cases (including financial measures) were to be settled by a
joint session of both the Houses. What the Draft Constitution said was :
If a BUI which has been passed by the Legislative Assembly and transmitted
to the Legislative Council is not, before the expiration of twelve months
from its reception by the CotmcU, presented to the Governor for his assent,
the Governor may summon the Houses to meet in a joint sitting for the
purpose of deliberating and voting on the BUI :

Provided that if it appears to the Governor that the Bill relates to finance, he
may summon the Houses to meet in a joint sitting for the purpose aforesaid
notwithstanding that the said period of twelve months has not elapsed^

These provisions were considered by the Drafting Committee at its
meetings in January 1948. The committee adopted provisions which were
by and large similar to those adopted in the case of ParEament. The
committee included specific provision that, in respect of Money BiEs, the
final decision would, as in the case of Parliament, vest in the Lower House,
and that the power of a Legislative CouncE would be Emited to making
suggestions for amendment. The committee explained in a footnote that
this provision was inserted to give effect to the recommendations of the
Expert Committee on financial provisions.

‘Clause 146(2). ye/ecr ZIocKmente III(i), p. 59.

THE STATE LEGISLATURES

451

It is interestiHg to recall that in the case of the Council of States the
Drafting Committee rejected the idea of a panel on the lines prescribed
by the Irish Constitution of 1937: the reason being that this system had
been found unworkable in that country. In the case of the Pfovincial
Legislatures, however, the Draftiiig Committee retained these provisions'.
The fact seems to be that at that stage the committee had not considered
all the implications of the provision of second chambers in States and this
clause was inserted on a tentative basis, for want of a better alternative.
The Constitutional Adviser commented as follows on this clause:

As regards functional representation and the panel system for the second

chambers in the States, the Drafting Committee has retained it reluctantly,

because

(a) to replace it by nomination as at the Centre would mean creating a
second chamber, two-thirds of which would consist of nominated members;

(b) a second chamber in the States is not obligatory, so that if a chamber
composed as prescribed in the Constitution is not considered satisfactory,
the State concerned need not have a second chamber at all. In fact it
is expected that most States would have a single chamber".

In respect of the composition of the State Legislatures the committee
accepted the substance of the main provisions contained in the Constitutional
Adviser’s Draft with certain drafting changes. The provision of reservation
of seats in the Lower House for certain communities, included earlier in
the Part relating to the State Legislatures, was transferred to a separate
Part entitled “Special Ptovisions relating to Minorities”. The schedule
containing detailed provisions for the franchise and the conduct of elections
was omitted, and it was left to the appropriate Legislatures to pass Acts
governing such ancillary matters®.

In pursuance of the decision taken by the Constituent Assembly in July
1947 regarding the setting up of Legislative Councils, the members
representing the different Provinces met in separate groups in. November
1948. The representatives of Madras, West Bengal, the United Provinces,
Bihar and East Punjab decided in favour of second chambers for these
States; the representatives from Bombay had already met in July 1947 and
decided in favour of a Legislative Council for that State. On January 6, 1949.
Ambedkar moved an amendment to give effect to these recommendations*.

There was a considerable volume of opinion against the institution of
second chambers in the States. K. T. Shah was of the view that second
chambers would involve a substantial outlay from the public exchequer, and

^Ax&cl& ISQ. Select Documents III, 6, ■pp. 57i-2.

"Comments and suggestions on the Draft Constitution, Se/ecr Documents IV,
l(i), p. 96.

"See articles 294, 295, 290 and 291, Select Documents III, 6, pp. 630-1. On the
question of reservation of seats, see Chapter on Minorities.

^Select Documents W, A, pp. 505-9, C. A. Deb., Vol. VII, p. 1309.

452

FRAMING OF INDIA’S CONSTITUTION

oaly help party bosses to distribute patronage; and their only other purpose
was to help in obstructing or delaying necessary legislation for which the
people had given their votes. Those who defended second chambers, he
alleged, were more often than not champions of vested interests. K. T. Shah
was therefore opposed to second chambers. At the same time he recognized
that there was a division of political opinion on this matter. He moved a
compromise amendment which would authorize Parliament to decide in the
first instance which States should have second chambers; but Parliament
would also abolish such chambers whenever requested to do so by the
Legislature of the State’. Kuladhar Qialiha (Assam) considered second
chambers to be clogs in the way of progressive legislation. Other members
also spoke in a similar vein in opposition to this institution. On the other
hand, Lakshminarayan Sahu wanted a second chamber to be established
in Orissa and L. Krishnaswami Bharathi was in favour of second chambers
for aH States”.

Replying to these points, T. T. Krishnamachari reminded the Assembly
that it had already in principle agreed to the establishment of second
chambers in those States whose representatives wished to have them”.
Ambedkar made it clear that second chambers were being introduced purely
as an experimental measure. He invited attention to draft article 304 which
laid down the manner in which an existing second chamber could be
abolished or one created in a State which did not have a second chamber.
It was provided in this article that the Legislative Assembly of a State, or,
in States where there were two Houses, both Houses, could pass a Bill for
this purpose; such a Bill, on ratification by Parliament by a majority of
the total membership of each House, would have the effect of amending
the Constitution. Ambedkar suggested that the provision as it stood might
be adopted. If the Assembly felt later on that some of the provisions for
the amendment of the Constitution should be further relaxed so that the
“process of getting rid of the second chamber may be facilitated”, he would
raise no difficulty. On this note the Assembly approved the amendment
moved by Ambedkar*. The Drafting Committee appears subsequently to
have reconsidered the procedure for the creation or abolition of second
chambers; and on July 30, 1949, Ambedkar introduced an amending article
148>A enabling Parliament by law to create or abolish the Legislative
Council of a State if the Legislative Assembly of such a State passed a
resolution to that effect by a majority of its total membership and a
two-thirds majority of the members present and voting”. Thus the decision
on the question whether there should or should not be a second chamber

'C. y4. De*., Vol. VII, p. 1305.

^lbid.,pp. 1306-14.

mid., pp. 1314-5.

Hbid., p. 1318.

“Ibid.. Vol. IX, p. 13.

THE STATE LEGISLATURES

453

was left primarily to the Legislative Assembly. This amendment was
approved by the Constituent Assembly and incorporated as article 169 of
the Constitution.

The question how second chambers in the States should be constituted
also gave rise to much discussion. As mentioned earlier, article 150 of the
Draft settled by the Drafting Committee retained the system of functional
representation borrowed from the Irish Constitution for one-half of the
number of seats; of the balance, two-thirds would be elected by members
of the Legislative Assembly by proportional representation by means of the
single transferable vote; and the remainder nominated by the Governor. A
number of divergent views were expressed in the amendments proposed on
this subject. This matter was discussed in a meeting with Provincial Premiers
and it was agreed, at the suggestion of the Prime Minister, Jawaharlal
Nehru, that the composition of the Legislative Councils need not be provided
for in the Constitution itself, but might be left to Parliament to prescribe
by law'. An amendment was accordingly moved by Ambedkar on July
30, 1949®. Ambedkar explained that, since the principle of functional
representation embodied in the draft article had been abandoned in the
case of the Council of States, it would not be consistent to retain it for
the second chambers of States; at the same time, the Drafting Committee
could not come to any definite conclusion about the composition of this
chamber and accordingly proposed that it should be left to be decided by
an Act of Parliament. There was, however, a persistent demand that the
Drafting Committee should itself formulate definite proposals on the subject
for the consideration of the Constituent Assembly, and the President of
the Assembly also expressed his opinion that the composition of the
chambers of a Legislature was an important matter which shoidd be laid
down in the Constitution itself. Further debate on the article was
postponed. On August 19, 1949, Ambedkar moved an amendment
containing the Drafting Committee’s proposals for the composition of State
Legislative Councils. This amendment provided a minimum membership
of 40 for a Legislative Council and a maximum of 25 per cent of the total
number of members of the Assembly; it laid down that the Council would
be made up as follows : one-third to be elected by electorates consisting of
members of municipalities, district boards and other local authorities;
one-twelfth to be elected by graduates (or persons with equivalent
qualifications) of three years’ standing; one-twelfth by secondary school
teachers; one-third by members of the Legislative Assembly of the State;
and the balance by nomination by the Governor of persons with special
knowledge of. or practical experience in, literature, science, art, the

“Minutes of Drafting Committee’s meeting with Premiers, July 22, 1949, Select
Documents IV, 15(iii), pp. 693-4.

*C. A Deb., Vol. DC, p. 21.

Hbid. p. 37.

454

FRAMING OF INDIA’S CONSTITUTION

co-operative movement and social services. Parliament was authorized by
law to alter this composition".

These provisions came in for much adverse comment. Ambedkar in
replying to criticisms said that he did not claim that the opinion of the
Drafting Committee was the only correct one in this matter; but no
constructive alternative suggestion had been put forward. He said:

We have to provide some kind of constitution and I am prepared to say

that the constitution provided is as reasonable and as practicable as can be

thought of in the present circumstances”.

The Assembly adopted the amended article as proposed by Ambedkar.

The composition of Legislative Assemblies was discussed at a meeting
of the Special Committee held on April 11, 1948. Govind Ballabh Pant
drew attention to the proviso to clause (3) of article 149 of the Draft
Constitution under which the total number of members in the Legislative
Assembly of a State could not be more than 300, although it had been
provided in the same clause that the representation of each territorial
constituency in the Legislative Assembly of a State would be on a scale
of not more than one representative for every 100,000 of the population.
In view of the limit imposed by this proviso, the United Provinces (Uttar
Pradesh) with a population of 60 million could not have more than 300
members in the Legislative Assembly. This would be quite unjust, for a
House of only 300 members would be unrepresentative in character and
composition and would fail to reflect faithfully public opinion in the
Province; and it would also be physically impossible for any member to
maintain personal touch with voters on account of the large numbers
involved. The Special Committee came to the decision that where the total
population of a State exceeded 30 million, there should be five additional
representatives for every complete naillion of the population above 30
million and that the total number of members should not in any case be more
than 450*.

A somewhat elaborate amendment seeking to give effect to this decision
was moved by Ambedkar on January 6, 1949*. T. T. Krishnamachari
moved an alternative and simpler amendment merely raising the maximum
strength of the Assembly to 500, his argument being that it was not necessary
to explain in any detail in the Constitution, as Ambedkar’s amendment
sought to do, the manner in which the strength of a State Assembly could
be raised beyond 300, since there would be a body, whether constituted
by the Rrorincial Legislature or by Parliament, which would lay down
how this number should be arrived at. In support of a maximum strength
of 500. Krishnamachari said that 450 (a figure also suggested by some

’C. 4. DeL, Vol. DC, p. 473-4.

TW4., p. 490.

‘Minutes, April 11, 1948, Select Documents IV, I(iii), p. 413.

*C. A. Deb., Vol. VII, p. 1324-

THE STATE LEGISLATURES

455

others) might be inadequate in the case of a larger State with a growing
population, particularly in Madras and the United Provinces (Uttar Pradesh),
where the population was much above the fifty million mark'.

Another amendment moved by Krishnamachari provided for a scale of
representation of not more than one member for every 75,000 of the
population (instead of one for every 100,000 prescribed in the draft) in
order to ensure proper representation of areas where the population was
sparse but the areas were large®. Gopinath Bardoloi from Assam moved
an amendment seeking to include the cantonment and municipality of
Shillong, along with the autonomous districts of Assam, as areas for which
higher representation should be given®. These amendments were accepted
by the Assembly.

In draft article 149 there was no provision, on the lines of the one
included in the case of Parliament, that the ratio between the number of
members to be elected from any territorial constituency and the population of
that constituency should be the same throughout a State. Shibban Lai Saxena
and Thakurdas Bhargava sponsored an amendment for the inclusion of a
similar clause. There was general support for this amendment and it was
accepted*.

Thakurdas Bhargava wanted an additional clause providing for a fresh
census in East Punjab and West Bengal. The last census was taken in
1941 and the figures of that census would not represent the true figures of
population in the post-partition period when there was a large scale migration
of population. Subsequent speakers emphasized that other areas like Delhi
also faced a similar position".

Ambedkar admitted that it would not be fair to take the census figures
of 1941 as the basis for the delimitation of constituencies or the allocation
of seats. According to him the Scheduled Castes had suffered most in “the
manipulation of census calculations by reason of political factors”. He
admitted that something would have to be done in order to see that the
next election was a proper one, related precisely to the population figures
of the Provinces as well as the communities. Ambedkar gave an assurance
that these sentiments would be communicated to those who would be in charge
of this matter and they would be properly attended to. He also promised
to move at the appropriate stage an amendment permitting the Ptesidenf
to have an interim census for the purpose of removing these grievances".
In pursuance of this promise he introduced on October 7, 1949, an article
empowering the President to direct by order that, for the purpose of

'C. X De&.. Vol. Vn, pp. 1324-5.

nbid., p. 1321.

^id., p. 1323.

Hbid., pp. 1326 and 1327.
p. 1326.

Hbid,, p. 1388.

456

FRAMING OF INDIA’S CONSTITimON

elections held within a period of three years from the commencenient of the
Constitution, the population of India or any part thereof might be
determined in such manner as might be specified in the orderi. H. V.
Kamath and Shibban Lai Saxena wanted this power to be subject to the
approval of Parliament ; but Ambedkar pointed out that this was purely
an administrative matter necessitated by the special circumstances of the
case and these powers should be left to be exercised by the President. The
Assembly approved the amendment.

At a conference of the Drafting Committee with the Premiers of Provinces
in July 1949, there was considerable discussion about the powers of the
Legislative Councils in States. Govind Ballabh Pant (then Premier of the
United Provinces) was of the opinion that there should be no joint sittings
in the event of, difference of opinion between the two Houses on any
BiU, but that in the event of a conflict between the two Houses, the
opinion of the Lower House should prevail’. This suggestion was agreed
to and an amendment was moved in the Constituent Assembly on August
1, 1949, by Ambedkar to draft article 172, providing that in the event
of a conflict between the two Houses over a Bill, the decision of the
Legislative Assembly was to prevail. According to this amendment, if a
Bill (other than a Money BiU) passed by the Legislative Assembly was
rejected by the Upper House, or delayed by more than two months (this
period was extended to three months on an amendment moved by T. T.
Krishnamachari) or amended in a manner not acceptable to the Legislative
Assembly, the Bill would again be considered by the Assembly and the
Assembly could pass the Bill again vrith or without such amendment as
might have been suggested by the Council. The BiU would then again
go to the Council; but if at this stage the Council rejected it, or delayed
it by more than a month, or made amendments to which the Assembly
would not agree, the Bill would be “deemed to have been passed by both
Houses” in the form in which it was approved by the Assembly : and it
would accordingly be presented to the Governor for his assent’.

There was some lively discussion on this article, some members expressing
the view that either the Legislative Council should have the same powers
as in the Union or it should not be there at all. Brajeshwar Prasad opposed
this clause; he had no faith that a Lower House constituted on the basis
of adult franchise would be able to do justice to every one*. But the
Assembly eventuaUy accepted Ambedkar’s explanation that there was a
difference in the position as between the States and the Union and that,

‘Article 312^E of the Draft Constitution (now article 387). C. A. Deb., VoL X,
p. 24.

‘Minutes of the meeting of Drafting Committee with Premiers, July 22, 1949. Select
Documents IV, 15(iii), p. 694.

*C. A Deb., Vol. IX, p. 43. Article 197 in the Constitution as adopted.

*lbid., pp. 45-6.

THE STATE LEGISLATURES

457

having regard to the federal character of the Constitution, the procedure
of a joint session was appropriate at the Centre but not in the States; and
the clause as moved by him was passed\

One other provision of importance was introduced on October 17. 1949.
T. T. Krishnamachari, on behalf of the Drafting Committee, moved a
proviso to article 175 which required the Governor to reserve for the
President’s consideration any Bill which would seriously impair the position
of High Courts. Explaining the provision Ambedkar said that such a
requirement had been included under the Government of India Act, 1935,
in the Instrument of Instructions to the Governor: though the organization
and territorial jurisdiction of High Courts were subject to the authority
of the Centre, it would be possible for a State Legislature to reduce the
pecuniary jurisdiction of a High Court by raising the value of a suit that
might be entertained by the High Court. This would be one way whereby
the State would be in a position to diminish the authority of the High
Court. Again, in enacting a measure on a State subject, like debt
cancellation, it would be possible for a State Legislature to provide that
the decree made by a court or a board set up under the law would be
final, and that the High Court would have no jurisdiction. Having regard
to the importance of the High Court as an institution intended to adjudicate
between the legislature and the executive and between citizen and citizen,
a safeguard of the kind proposed was necessary. This amendment was
accepted^

The provisions relating to State Legislatures were renumbered articles
168 to 209 at the revision stage.

NOTE ON AMENDMENTS

Article 168 : On account of the reorganization and redesignation of States
at various times, the names of the States 'with second chambers had to be
changed from time to time. The latest position is that Andhra Pradesh,
Bihar, Madras, Jammu and Kashmir, Maharashtra, Mysore, Punjab, Uttar
Pradesh, and West Bengal have each a Legislative Council. In Madhya
Pradesh the Council has not yet been constituted though there is a provision
to this effect.

Article 170 : This article was amended by the Constitution (Seventh
Amendment) Act, 1956. The reference to the scale of representation was
omitted, because it was considered possible that diere might be States with
a population of less than 4.5 million, in which case the two conditions of
a minimum of 60 members and a scale of representation of not more than
one member for every 75,000 of the population could not be satisfied

’C. JDe*., Vol. IX, pp. 43-4 and 57-9.

Vol. X, p. 392. Article 200 of the Constitution.

458

FRAMING OF INDIA’S CONSTITUTION

simultaneously. It was now provided that the maximum membership would
be 500 and the minimum sixty; and that each State would be divided into
territorial constituencies and the ratio in any constituency between the
population and the number of States would be the same throughout the
State. The provision for the readjustment of constituencies after each
decennial census was retained intact.

Article 171 : The Constitution (Seventh Amendment) Act, 1956, also raised
the maximum membership of a State Legislative Council to one-third instead
of one-fourth of the membership of the Assembly.

Articles 174 and 176 : The changes made by the Constitution (First
Amendment) Act, 1951, to these articles provided ;

(a) the Governor should summon each House of the State Legislature
to meet within six months of the last sitting in one session ; and

(b) the Governor should address the State Legislature at the commencement
of the first session after a general election and not at the commencement
of every session as under the original article.

FRANCHISE AND ELECTIONS

Part XV of the Constitution, containing provisions regarding franchise
and elections, consists of six articles. Article 324 provides for a single central
Election Commission to superintend, direct and control all elections to
Parliament and to the State Legislatures and to the offices of President
and Vice-President. The article provides that the Election Commission
shall consist of the Chief Election Commissioner and such number of
other Election Commissioners, if any, as the President may from time to
time fix. It also provides for the appointment of Regional Commissioners
at the time of the general elections.

Article 325 lays down that there shall be one general electoral roll for.
every territorial constituency for election to either House of Parliament,
or to the House or either House of a State Legislature. No person is
ineligible for inclusion in any such roll on the grotmd only of religion,
race, caste, or sex : nor can anyone claim to be included in any special
electoral roll for any such constituency on any such ground.

Article 326 provides for adult suffrage as the basis for elections to the
House of the People and the Legislative Assembly of every State : namely,
a vote for every citizen not less than twenty-one years of age who is not
otherwise disqualified under the law on the ground of non-residence,
unsoundness of mind, crime or corrupt or illegal practice.

Article 327 vests legislative power in Parliament to make laws relating
to all matters concerning elections to either House of Parliament or to the
House or either House of a State Legislature, including the preparation of
electoral rolls, the delimitation of constituencies and all other matters
“necessary for securing the due constitution of such House or Houses”.
Article 328 confers powers on State Legislatures to make laws relating to
elections to the House, or either House of Legislature of the States, in so
far as provision is not made in that behalf by Parliament by law.

Article 329 bars the jurisdiction of courts to enquire into the validity of
laws regarding the delimitation of constituencies or the allotment of seats
to such constituencies. It also lays down that no election may be called
in question except through an election petition, presented to such authority
and in such manner as may be provided for by law.

ELECTION COMMISSION

In the Government of India Act, 1935, and in the earlier statutes the

460

FRAMING OF INDIA'S CONSTITUTION

coEducT of , elections' was left to the executive— the Central or Provincial
'GovernmentSs '.accordmg as election to the Central or State Legislature was
concerned. In the discussions in the Constituent Assembly;' there emerged
almost , from the beginning a consensus of opinion that the right to vote'
should be treated as a fundamental right of the citizen and that, in order
to. enable him to exercise this right freely, an independent machinery to
control elections should be set up, free from local pressures and political
influences.

There was considerable discussion on these issues in the Fundamental
Rights Sub-Committee and the Minorities Sub-Committee. K. M. Munshfs
draft articles on fundamental rights included the following clause :

Every citizen has the right to choose the Government and the legislators
of the Union and his State on the footing of equality in accordance with
the law of the Union or the unit, as the case may be, in free, secret and
periodic electionsh

This clause was considered by the Fundamental Rights Sub-Committee
at its meeting held on March 29, 1947. The sub-committee approved that

(1) universal adult suffrage must be guaranteed by the Constitution ;

(2) elections should be free, secret and periodic ; and

(3) elections should be managed by an independent commission set up
under Union law*.

To give effect to these conclusions, the following recommendation was
drafted for inclusion in the sub-committee’s report :

(1) Every citizen not below 21 years of age shall have the right to vote
at any election to the Legislature of the Union and of any unit thereof, or,
where the Legislature is bicameral, to the lower chamber of the Legislature,
subject to such disqualifications on the ground of mental incapacity, corrupt
practice or crime as may be imposed, and subject to such qualifications
relating to residence within the appropriate constituency as may be required
by or under the law.

(2) The law shall provide for free and secret voting and for periodical
elections to the Legislature.

(3) The superintendence, direction and control of ail elections to the
Legislature, whether of the Union or of a unit, including the appointment
of Election Tribunals, shall be vested in an Election Commission for the
Union or the unit, as the case may be, appointed in all cases in accordance
with the law of the Unionl

There was some difference of opinion about vesting so much power in
the Union in the matter of Election Commissions. It will be seen that, in
terms of the recommendation made by the sub-committee, the appointment of
all Election Commissions, irrespective of whether they were to function in

^Select Documents II, 4(ii) (b), art. V, p. 76.

“Minutes, Select Documents 11, 4(iii), p. 130.

“Draft Report Ibid.. II, 4av), p. 139.

461

FRANCHISE AND ELECTIONS

relation to elections to the Legislature of the Union or in relation to elections
to the Legislature of a unit, was to be regulated by Union law. Some
members of the sub committee fdt that it would be an infringement of the
rights of the units if such over-riding authority was given to Union law in
matters relating to elections to the Legislatures of the units. Nevertheless
the recommendation as included in the draft report was adopted by the
sub-committee by a majority vote\

The Minorities Sub-Committee considered these provisions at its meeting
held on April 17, and accepted these recommendations. The only point
that arose at the meeting of this Sub-Committee was raised by Syama Prasad
Mukerjee, who thought that the minorities should be effectively represented
in these Election Commissions. On the other hand Jairamdas Daulatram
did not think it practicable to provide for separate representation for
minorities. He suggested that the Election Commissions should be so
constituted that they would function as impartial bodies and inspire
confidence among all parties and communities. Accepting this suggestion,
the Minorities Sub-Committee proposed in its report that Election
Commissions should be independent and quasi-judicial in character’.

The Advisory Committee on Fundamental Rights, Minorities, and Tribal
and Excluded Areas considered this matter at its meetings of April 20 and
21. There was unanimous acceptance of the principles formulated by the
Fundamental Rights Sub-Committee. Discussion centred mainly on the
question whether the chapter on fundamental rights was the proper, place
for laying down these matters which pertained to electoral law.
C. Rajagopalachari was of the view that franchise would not ordinarily be
a part of fundamental rights ; and P. R. Thakur pointed out that the proposal
not only made adult franchise compulsory, but also provided for direct
elections, thereby prejudging the issue of direct elections ; he expressed the
view that the Advisory Committee, dealing as it did with fundamental
rights, could not appropriate the jurisdiction to decide on this issue.
Ambedkar, on the other hand, was clearly and emphatically of the opinion
that adult franchise and all provision for its free and fair, exercise should
be recognized as in the nature of fundamental rights. He said ;

So far as this committee is concerned, my point is that we should support
the proposition that the committee is in favour of adult suffrage. The
second thing that we have guaranteed in this fundamental right is that the
elections shall be free and the elections shall be by secret voting. . . We have
not said that they shall be direct or they shall be indirect. That is a matter
that may be considered at another stage. . . The third proposition which
this fundamental clause enunciates is that in order that elections may be
free in the real sense of the word, they shall be taken out of the hands of

^Minutes, April 14, Select Documents 11, 4(vii), p. 164.

“Minutes and Report, Ibid., II, 5(i) and (ii), pp. 201, 208.

462 .

FRAMING OF INDIA’S CONSTITUTION

■ the Government of the day, and that they should be conducted by', an
independent body which, we may here call an Election' Commission. ' We
have' also’ given permission in sub-clause (3) of this clause that each unit
may appoint its own Commission. The only thing is that the law shall be
made by the Union. The reason for this is that later on there will be a
clause in the Constitution which will impose an obligation upon the Union
Government to protect the Constitution framed by themselves for the units.
Therefore we suggested that the Union should have the power of making
a law, although the administration of that law may be left to the different
units.

There was unanimous support for the principles enunciated by Ambedkar
but Rajagopalachari argued that it would not be proper to deal with this
issue as a fundamental right. It could -not be taken for. granted, he said,
that the Union Legislature would be elected by the direct vote of aU citizens
from all India. He therefore suggested that these matters relating to
franchise should be dealt with when they arose in connection with the
Constitution and not be prejudged as fundamental rights. Eventually a
compromise solution suggested by Govind Ballabh Pant was adopted, and
it was decided that these recommendations need not go as part of the
clauses on fundamental rights ; but that in the letter forwarding the report
of the Advisory Committee the Chairman should make it clear that the
committee recommended the adoption of these proposals^

In accordance with this decision the Advisory Committee recommended
that, instead of being included in the chapter on fundamental rights, the
provision regarding the setting up of an independent Election Commission,
along with the other two proposals regarding adult franchise and free and
fair elections to be held periodically, should find a place in some other part
of the Constitution.

In Ms memorandum on the principles of a model Provincial Constitution
circulated on May 30, 1947, B. N. Rau, the Constitutional Adviser, included
a provision that the superintendence, direction and control of elections,
including the appointment of election tribunals, should be vested in the
Governor acting in his discretion, subject to the approval of the Council
of State*. Likewise, in the memorandum on the Union Constitution,
circulated on the same date, he included a similarly comprehensive provision

Proceedings and Minutes of Advisory Committee. Select Documents II, 6(iv) and
(v), pp. 249-51, 288.

^See letter from Chairman, dated April 23, 1947, forwarding Interim Report on
Fundamental Rights, Para 9. Select Documents II, 7, pp, 295-6.

^Select Documents II, 21(ii), p. 638. For an account of the proposal re: Council
of State, Chapter on the President and the Union Executive. The proposed Gouncil
of State was conceived as a sort of Privy Council to advise on certain specific matters,
in which he was to act in his discretion. The idea of having such an institution was
however .given, up.

^Select Documents 15(ii), p. 488.

FRANCHISE AND ELECTIONS

463

that the control of central elections, including the appointment of election
tribunals, should be vested in the President acting in his discretion ; the
intention of this provision was to make available to the President the advice
of the Council of State.

The Provincial Constitution Committee in its report of June 27, 1947,
accepted the suggestions in the Constitutional Adviser’s memorandum but
deleted the reference to the approval of the Council of State’. The Union
Constitution Committee deleted all the suggestions for the exercise of
discretionary powers by the President and also the proposal for a Council
of State. The committee however took a definite step in the direction of a
centralized authority in the matter of elections : according to its
recommendation, all powers of supervision, direction and control in respect
of the federal as weU as provincial elections would be vested in a Commission
to be appointed by the President. The Union Powers Committee expanded
this proposal by the inclusion in the Federal Legislative List of the subject
“All Federal elections: and Election Commission to superintend, direct
and control all Federal and Provincial elections’”.

The provisions suggested in the model Provincial Constitution came
up for discussion in the Constituent Assembly on July 18, 1947. The
Assembly agreed to K. M. Munshi’s proposal to omit the clause vesting
in the Governor acting in his discretion the powers of superintendence,
direction and control over elections, as the Union Constitution
Committee had recommended an all-India Election Commission to exercise
control over provincial as weU as federal elections. There was, therefore, no
need to give this power to the Governor acting in his discretion.

When the Report of the Union Constitution Committee came up before
the Assembly, H. V. Pataskar moved an amendment restricting the
jurisdiction of the Central Election Commission appointed by the President
to federal elections. The object of the amendment was to provide that the
supervision of provincial elections should not be vested in the President
but should be left to the Governor or some other appropriate authority in
the Province*. In dealing with this amendment, Ambedkar explained that
the scheme contemplated by the Fundamental Rights Committee was that
there should be a Central Commission dealing with elections to the Federal
Parliament and that this Commission would also have as subordinate to it a
Commission for each Province (or a single Commission for two or three
Provinces combined together). Ambedkar thought that this woidd meet the
object which Pataskar had in mind. He said:

Many people felt that if the elections were conducted under the auspices

^Select Documents II, 24, p. 661.

^Report of the Union Constitution Committee, and Second Report of the Union
Powers Committee, July 5, 1947. Select Documents II, 18{i) and 33(i), pp. 584 and 781.

3C. .<4. Vol. IV, p. 693.

^Ibid., p. 971.

464.

FRAMING OF INDIANS GONSTITOTION

of the executiw auth and if the executive authority did have power, as
: it must have, of transferring officers from one area to another with the
' object of gaining support for a particular candidate who was a favourite
with the party in office or with the Government of the day that, will certainly
vitiate the free eiection which we all wanted. It was therefore unanimously
; ; resolved by the members of the Fundamental Rights Committee, that the
greatest safeguard for purity of elections, for fairness in elections, was to
take away the matter from the hands of the executive authority and to
hand it over to some independent authority \

He had however no objection to accepting Pataskar’s amendment, so long
as the principle of an independent Election Commission was accepted. In
that case, a similar clause would be introduced in the provincial part of the-
Constitution. The amendment proposed by Pataskar was also accepted
by N. Gopalaswami Ayyangar* who said that while the actual conduct of
elections and the executive machinery that might be required for conducting
them would have to be mobilized through the Provincial Governments,
the superintendence and control should be impartial and be in the hands
of an impartial tribunaf.

The Constitutional Adviser in his Draft Constitution of October 1947
provided that the superintendence, direction and control of all elections
to the Federal Parliament and Provincial Legislatures (including the
appointment of Election Tribunals for the decision of doubts and disputes
in connection with elections to Parliament and to Provincial Legislatures)
and of all elections to the offices of President, Vice-President, Governor and
Deputy Governor, should be vested in a Commission appointed by the
Presidenf . The Drafting Committee altered this scheme and in its draft
the power of appointing an Election Commission for supervising elections
to the office of Governor and to the State Legislature was vested in the
Governori. The Drafting Committee expressed the definite opinion that
the Election Commission for provincial elections should be appointed by
the Governor. This view underwent a radical change subsequently and on
June 15, 1949, when the article came up for discussion in the Constituent
Assembly, Ambedkar introduced a new article which made comprehensive
provision for a Central Election Commission to be in charge of all Central
and State elections. The main features of the article were :

(1) There was to be a Central Election Commission which would be
responsible for the superintendence, direction and control of the

A. Deb,, Vol IV, p. 973.

2/6/d., p. 976.

^Clause 224, Select Documents 111, l(tX pp. 93-4. The decision that the office of
Governor would be filled by appointment by the President and that there would be
no Deputy Governor was taken subsequently.

'‘Draft Constitution prepared by the Drafting Committee, Feb. 21, 194S, art. 289.
Select Documents III, 6, pp. 629-30.

FRANCHISE AND ELECTIONS

465

preparation of electoral rolls for, and the conduct of all elections to
Parliament and the Legislature of every State and of elections to the
offices of President and Vice-President, including the appointment of
election tribunals.

(2) The Commission would consist of a Chief Election Commissioner and
such number of other Election Commissioners as might be appointed
by the Union Government.

(3) Before each general election and before each biennial election to a
Legislative Council of a State, the President would be empowered to
appoint in consultation with the Election Commission such Regional
Commissioners as might be necessary.

(4) The Chief Election Commissioner would have the same security of
tenure as a Supreme Court judge and no other Election Commissioner
or Regional Commissioner could be removed from office except on the
recommendation of the Chief Election Commissioner.

(5) The Union and State Governments were required to make available
to the Election Commission such staff as might be necessary for their
functioning\

This amendment was the subject of a controversial discussion. Defending
it, Ambedkar said that the executive Government in certain Provinces was
“instructing and managing things in such a manner that those people who
do not belong to them either racially, culturally or linguistically, are being
excluded from being brought on to the electoral rolls”. He added that in order
to prevent injustice being done to such persons, it was necessary to depart
from the original proposal of having separate provincial Election
Commissions, and place the entire election machinery under a Central
Commission. K. M. Munshf went a step further and said that complaints had
been received that certain Provincial Governments could not be “trusted” to
be as impartial in elections as they should be : they could also not forget that
ten or eleven of the Indian States were not accustomed to even the little
measure of democratic life enjoyed by the Provinces. The principal opposition
to an Election Commission set up under Union auspices was voiced by
Kuladhar Chaliha from Assam who vigorously complained that the Centre
was reducing the States to the position of municipal bodies without any
initiative ; he said, “if you cannot trust the honesty of your own individuals
you can never make a success of democracy’”. H. V. Pataskar, who had
earlier advocated separate Election Commissions for the States, also renewed
his plea. He thought that the changes now introduced indicated a tendency
“gradually to move away from the idea of Federation’”. He saw no
reason why separate Commissions appointed for States should not be as

’C. DeL, Vol. vni, p. 904.

Hbid., p. 927.

Hbid.. p. 919.

*Ibid., pp. 910-2; and 915-6,

466

FRAMING OF INDIA’S CONSTITUTION

independent as the Central Conunission. H. N. Kunzm also criticized
the amendment. He emphasized that it was not right that in a matter of
this kind the State Governments should be deprived of all power : and,
even if it was assumed that the need existed for taking the control of
elections out of the hands of Provincial Governments, the amendment did
not contam the necessary safeguards. By leaving a great deal of power in
the hands of the President, it gave room for the exercise of political
influence by the Central Government in the appointment of the Chief Election
Commissioner and the other Election Commissioners. His remedy was that
Parliament should be authorized to make provision for these matters by
law". K. M. Munshi, while supporting Ambedkar’s proposal suggested in
order to meet Kunzru’s criticism an amendment requiring that the
appointment of the Chief Election Commissioner and the other Election
Commissioners would be subject to law made by Parliament : and that the
power of the President to make rules regulating their conditions of service
would likewise be subject to any law made by Parliamenf. With these
modifications the article was adopted" : at the revision stage it was numbered
as article 324.

JOINT ELECTORATES

Ever since the introduction of the elective principle for Legislatures in
India, separate communal electorates were a feature of the Indian electoral
scene*. Under the Indian Councils Act of 1892, which provided that the
Government should nominate to the Councils persons selected by important
public bodies, such as municipalities, district boards, universities etc.,
directions had been issued that representation should be provided for certain
classes and interests, among which Muslims were named. But at this stage
no right to be elected was conferred on any community. The principle of
separate representation through a com m unal electorate was first formally
adopted in 1909. In 1906 a Muslim deputation led by the Aga Khan waited
on the Viceroy, Minto, and demanded communal representation from special
Muslim electorates. This demand found ready acceptance and in the Indian
Councils Act of 1909 and in the regulations made thereunder, Muslims were
given separate electorates, while retaining their right to vote also in the
general electorates. By 1916 the idea of separate representation on the basis
of religion had gathered so much momentum in current Indian political
thought that the Congress-Muslim League Scheme of 1916 (or Lucknow Pact)
not only extended the principle to Provinces where communal electorates did
not operate, but also laid down the proportion of Muslipa seats for all

Ac. /f. DeA, Vol. VIII, pp. 920-1.

Hbid., p. 925.

Hbid., pp. 951-60.

^Indian Statutory {Simon) Commission Report, 1930, Vol.' I, App. V to Ft II.

FRANCHISE. AND ELECTIONS'

467

Provincial Gou,!icils except Assam'. The Montagu-Chelmsford Report
strongly criticized communal electorates. The Indian Statutory Commission
quoting this report observed :

The Montagu-Chelmsford Report fully discussed the question of communal
electorates. It declared that they were opposed to the teaching of history :
that they perpetuated class division : that they stereotyped existing relations;
and that they constituted a very serious hindrance to the development of
the self-governing principle. But nonetheless the joint authors felt constrained
so far as the Muhammadans were concerned, to admit this system into
the constitution they were framing and to concede a similar arrangement
to the Sikhs of the Punjabi

The Nehru (All-Parties) Report of 1928 laid down the principle of joint
electorates, but this was totally unacceptable to the Muslims, and Jinnah,
in the fourteen points of his demands on behalf of Muslims, included two
clauses, one asking for the adequate and effective representation of minorities
and another demanding that such representation should be by separate
electorates unless any community decided to abandon this in favour of joint
electorates®.

The Communal Award of 1932, which formed a feature of the Government
of India Act, 1935 (with the modifications of the Poona Pact for Scheduled
Castes) extended the scope of reservation and separate electorates still
further. It accorded separate electorates to Muslims, Europeans, Sikhs,
Indian Christians and Anglo-Indians and reserved seats for Marathas in
certain general constituencies in Bombay*.

By this time the Indian National Congress also appears to have become
reconciled to the idea of separate electorates in the hope that this concession
would enable it to get the support of the minorities, and that thereby the
Congress would be able to bring about a united front in the demand for
independence. Speaking in the Indian Legislative Assembly on September
17, 1937, S. Satyamurti (the then Secretary of the Swaraj Party) said :

We believe that separate electorates are wholly inconsistent with any
conception of democracy or democratic government. We believe that in the
modern secular state a citizen has nothing to do with caste or religion : a
Legislature ought to be composed of the most eminent representatives of
the people, . . At the same time the Congress realizes that unless and until
we can get an agreed settlement with the consent of all communities
concerned, it is impossible, it is futile to try to fight the Communal Awardl

The Congress Working Committee’s resolution adopted at Calcutta in

^Select Documents I, 5, p. 26.

^Indian Statutory Commission (Simon) Report, 1930, Vol. I, para. 149.

^Select Documents I, 16, p. 61.

'‘Gwyer & Appadorai, Speeches and Documents on the Indian Constitution
(1921-47), Vol. I, pp. 244-5, 261-5.

^Select Documents I, 26, p. 96,

468

FRAMING OF INDIANS CONSTITUTION

October 1937 declared that while the Congress was opposed to the Communal
Award as being “anti-national, anti-democratic and a barrier to Indian
freedom' and the development of Indian unity”, nevertheless “a change in
or supersession of the communal decision should only be' brought about by
the mutuaiagreement of the parties concerned’”.

'All hopes of forging a settlement with the Muslim League vanished with
the League’s demand for Pakistan formally declared in . 1940 to- be the goal
of that organization.

' Under the Cabinet Mission’s statement of May 16, 1946, the question of
safeguards for minorities was in the first instance to bC' considered -by an
Advisory Committee to be set up by the Constituent' Assembly. By the
time the. Advisory Committee on Fundamental Rights, Minorities and Tribal
and Excluded Areas took up the question of ' joint or separate electorates,
the decision to partition the country had been taken and there was a strong
undercurrent of feeling that it was the separatist tendency resulting from
communal ' electorates that ultimately resulted in partition.. The Advisory
Committee made: the following recommendations :

The first question we tackled was that of separate electorates ; we considered
^ v this as being ' of cruciar importance both to the minorities themselves and

■ to the political life of the country as a whole. By . an overwhelming
majority we came to the conclusion that the system of separate electorates
must be abolished , in the new Constitution. In our judgment, this system
has in the past sharpened communal differences to a dangerous extent and
has proved one of the main stumblmg blocks to the development of
a healthy national life. It seems specially necessary to avoid these dangers

. in' the new political conditions that have developed in the country and from
^ of view, the arguments against separate electorates seem to us

■ absolutely decisive. '

' : We recommend accordingly that all elections to the Central and Provincial
Legislatures should be held on the basis of joint electorates^

Introducing a motion for joint electorates in the Constituent Assembly on
August 27, 1947, Vallabhbhai Patel said that there was unanimity of opinion
“on the point that there should be no more separate electorates and we
should have joint electorates hereafter. So that is a great gain”^

But in the "Assembly^ opinion was not unanimous. B. Pocket : Sahib and
Chaudhri Khaliquzzaman supported an amendment in favour of separate
electorates so ' far as Muslims were concerned. Two main arguments were
put forward in support of such electorates. The first was that they, were
being enjoyed by the Muslim community for over fO'ity years and “it would
be a':, sad thing to give rise to the feeling among' the Muslims. . . that they

PattabM Sitaramayya, The History of the Indian National Congress, Vol. II,

pp. 66-8,

^Select Documents 11^ 12, p. 412.

4. Deb,, \di.Yl, p. 213,

FEANCHISE AND ELECTIONS

469

are being ' deprived of the benefit of this institution now and that they
are being ignored and their voice stifled”/ Pocker Sahib made the further
point that the Assembly should accept the principle that "'the best man in
the particular community should represent the views of that coimnunity,.
and this purpose cannot be served except by means of separate electorates”^

. This proposal met with strong, opposition. Vallabhbhai- Patel declared
his uncompromising opposition to the principle of separate electorates. . The
introduction of the system of- communal electorates was, he said, a poison
which had entered into the body politic of the country. Patel attributed
the partition of the country, with its attendant upheavals, directly to the
issue of communal electorates.

It Is no use saying that we ask for separate electorates because it is good
for us. We have heard it long enough. We have heard it for years, and
as a result of this agitation we are now a separate nation. The agitation
was that ”we are a separate nation, we cannot have either separate electorates
or weightage or any other concessions or consideration sufficient for our
protection. Therefore, give us a separate State”. We said, “All right, take
your separate State”. But in the rest of India, in the 80 per cent of India,
do you agree that there shall be one nation ? Or do you still want the
two-nations talk to be brought here also ? I am against separate electorates.
Can you show me one free country where there are separate electorates ? If
so, I shall be prepared to accept it. But in this unfortunate country if this
separate electorate is going to be persisted in, even after the division of
the country, woe betide the country ; it is not worth living in^

The amendment proposing separate electorates for Muslims, on being
put to vote, was negatived by the Assembly^

In the Constitutional Adviser’s Draft of October, 1947, as well as in the
Draft prepared by the Drafting Committee in February 1948, no specific
provision was included for joint electorates because electoral details were
left to auxiliary legislation. The Drafting Committee subsequently came to
the conclusion that the provision regarding joint electorates was of such
fundamental importance that it ought to be mentioned expressly in the
Constitution^. The committee accordingly gave notice of an amendment
proposing a new article providing that all elections to either House
of Parliament or the Legislature of any State should be on the basis
of joint electorates. The amendment actually moved was more elaborate;
it said :

There shall be one general electoral roll for every territorial constituency
for election to either House of Parliament or to the House or either House
of the Legislature of a State and no person shall be ineligible for inclusion

1C. VoL VI, p. 231.

p. 246.

Hbid., p. 247. ■

^Select Documents IV, l(i), p. 141.

470

FRAMING OF INDIA’S CONStlTOXION

in, or claim to be excluded from, any such roll on grounds only of religion,
race, caste, sex, or any of them\

This draft article was moved on June 16, 1949. Only three weeks earlier,
the Assembly had, at the instance of the Advisory Committee on Fundamental
Rights, Minorities and Tribal and Excluded Areas, reached the momentous
decision to abolish the principle of reservation of seats for Muslims, Anglo-
Indians, Sikhs and Indian Christians. Referring to this Ambedkar said :

As a matter of fact this clause is unnecessary because by later amendments
we shall be deleting the provisions contained in the Draft Constitution which
make provision for representation of Muslims, Sikhs, Anglo-Indians and so
on. Consequently this is unnecessary. But it is the feeling that since we
have taken a very important decision which practically nullifies the past
it is better that the Constitution should in express terms state it. That is
the reason why I have brought forward this amendmentl
The new article as moved by Ambedkar. was adopted by the Assembly
without any discussion. At the revision stage the Drafting Committee
added a clause that no one could claim to be included in any special
electoral roll for any constituency on grounds only of religion, race, caste,
sex or any of them. With this change it now figures as article 325 of
the Constitution.

ADULT FRANCHISE

In the past, the Legislatures in India were elected on a very restricted
franchise, only a small fraction of the population being eligible to exercise
the vote. The Joint Committee on Constitutional Reform which reported
in 1934, estimated that the provincial electorate under the Reforms of 1919
numbered about 3 per cent of the population. The Indian Statutory
(Simon) Commission recommended the extension of the franchise so as
to cover 10 per cent of the population. Indian opinion had for a long time
been in favour of complete democracy and adult franchise, and in 1928
the Nehru Report had recommended adult franchise for the Lower House
of the Central Legislature as well as for the Provincial Legislatures. But
official opinion in India continued to be against any large-scale extension
of the franchise. Commenting on this matter in 1934, the Joint Committee
on Indian Constitutional Reform said that the difficulties which must
attach to any great and sudden extension of the franchise were mainly
administrative, as literacy was little spread and the number of persons
available to act as efficient Returning Officers was extremely limited. The
percentage of the enfranchised persons therefore continued to be low^

A. Dek, Vol VIII, p. 930. New article 289-A (now article 325).

Tolnt Select Committee on Indian Constitutional Reform, Report (1934), paras.
123-8.

MANCHISE AND. ELECTIONS

471

With the setting up of the Constituent Assembly, which gave Indians
the opportunity to frame their own Constitution, public opinion asserted
itself and from the beginning the feeling was unanimous in favour of the
introduction of adult franchise. The Cabinet Mission’s statement of May
16, 1946, recognized the strength of this feeling in the remark that the most
satisfactory method of forming a Constituent Assembly would be by election
based on adult franchise, though they had to decide against this on account
of the '‘unacceptable delay” it would involve in the formation of the new
constitution-making body.

Both the Fundamental Rights Sub-Committee and the Minorities
Sub-Committee recommended as a fundamental right that every citizen
not below 21 years should have the right to vote at any election to the
Legislature of the Union and of any unit thereof, or where the Legislature
was bicameral, to its lower chamber, subject to such disqualifications on
grounds of mental incapacity, corrupt practice or crime as might be
imposed. The Advisory Committee agreed with this in principle, but
recommended that, instead of being included in the Fundamental Rights
it should find a place in some other part of the Constitution'. Accordingly,
the principles of the model Provincial Constitution and the Union
Constitution both contained provisions that elections to the Legislative
Assemblies in the Provinces and the House of the People should be on the
basis of adult suffrage. In the Draft Constitution prepared by the Drafting
Committee, these provisions were included in the chapters relating to
Parliament and the Legislative Assemblies of States. The Special
Committee was of the opinion, however, that the provisions relating to
adult franchise should be contained in a comprehensive article applicable
to all elections to the Legislatures, or where there were two Houses of the
Legislatures, to the Lower Houses of all States^ An amendment was
accordingly moved by Ambedkar on June 16, 1949, introducing a new
clause which laid down that elections to the House of the People and to the
Legislative Assembly of eveiy State should be on the basis of adult franchise :
The elections to the House of the People and to the Legislative Assembly
of every State shall be on the basis of adult suffrage : that is to say, every
citizen, who is not less than twenty-one years of age on such date as may
be fixed in this behalf by or under any law made by the appropriate
Legislature and is not otherwise disqualified under this Constitution or any
law made by the appropriate Legislature on the ground of non-residence,
unsoundness of mind, crime or corrupt or illegal practice, shall be entitled
to be registered as a voter at any such election^

Tnterim Report of Advisory Committee, April 23, 1947. Select Documents II, 7(i),
^,pp. 295-6. • •

^Comments and Suggestions on the Draft Constitution, Select Documents IV,
l(i), p. 141.

A ^ Deb., Yol. VIII, p. 932. Article 289-B (now article 326).

472

FRAMING OF INDIA’S CONSTITUTION

This article was adopted without discussion.

NOTE ON AMENDMENTS

Among the functions assigned by the Constitution, as adopted in 1949, to
the Election Commission was the appointment of election tribunals for the
decision of doubts and disputes arising out of or in connection with elections
to Parliament and to the Legislatures of States. This function was deleted
from article 324(1) by the Constitution (Nineteenth Amendment) Act, 1966.
The Representation of the People Act, 1952, has since been amended and
it now prescribes that an election may be called in question by presenting
a petition to the High Court within the local limits of whose jurisdiction
the election has been held.

LEGISLATIVE POWERS OF THE PRESIDENT
AND THE GOVERNORS

One of the prominent features of the constitutional set-up in India under
British rule was that on the executive were conferred very considerable
legislative authority and power. It will be recalled that it was in 1833 that
under the Charter Act, the Central Council of the Governor-General was
strengthened by the inclusion of an additional Member, not in the service
of the Company, whose duties were to be confined to legislation; and the
Governments of Madras and Bombay were drastically deprived of their
powers of legislation. To this Council were added by the Charter Act of
1853 the Chief Justice of Bengal and one puisne judge, and four officials
from Madras. Bombay, Bengal and the North-Western Provinces; A radical
change in the position of the so-called Legislative Council (its cumbrous
statutory description was ‘'the Governor-General in Council at meetings for
the purpose of making laws and regulations”) was made by the Indian
Councils Act of 1861, This Act restored to Madras and Bombay the powers
of legislation which had been withdrawn in 1833. For the purposes of
legislation the Govemor-GeneraTs Coundl was reinforoed by additional
members, not less than six and not more than twelve in number, of whom not
less than half were to be non-officials. The Governors’ Executive Councils in
Madras and Bombay were also expanded on the same lines for the purposes
of legislation and tha Governor-General was given powar to establish similar
Councils for the North-Western Provinces and the Punjab. In this Act a
specific provision was included giving the Governor-General, functioning
without his Executive Council, power to make temporary Ordinances in
cases of emergency, which were to remain in force for not more than six
months".

The first introduction of an elected element in the Legislative Councils
took place in 1892. when the strength of the Councils was increased. The
Gavemor-General in Council was to frame regulations as to conditions
of nomination of the additional members. These regulations carefully
avoided the use of the term “elections”: but some kind of elective process
was adopted in practice, and nomination by the Governor-General was made
on the suggestion of certain recommending bodies. Thus, in the case
of the Indian Legislative Council, five more additional members were brought
in, one being recommended by the non-official members of each of the

Allbert, Government of India, pp, Z2-ll4i 225,

474

FRAMING OF INDIA’S CONSTITUTION

four provincial councils, and the fifth by the Calcutta Chamber of
Commerce’.

The elective element was formally introduced in the Legislative Councils
set up under the Minto-Morley Reforms in 1909. But the provision
empowering the Governor-General to promulgate Ordinances was retained
intact.

The power of the executive to make laws was further safeguarded with
the introduction of the Montagu-Chelmsford Reforms in 1921. In addition
to the Ordinance-making powers of the Governor-General, the Government
of India Act of 1919’ gave the Governor-General a special power of legislation
in situations where either chamber of the Indian Legislature refused leave
to introduce or failed to pass in a form recommended by the Governor-
General any Bill which was certified by him to be essential for the
safety, tranquillity or interests of British India or any part thereof. In such
an eventuality the Governor-General could enact the provisions of the Bill
in spite of the opposition of the chamber or chambers of the Legislature.

This power was more clearly spelt out in the Government of India Act
of 1935 and extended to the Governors. It may be recalled that the field
of administration was a complicated affair falling broadly under three areas :

(1) area of ministerial responsibility to the Legislature;

(2) areas where, for discharging his special responsibilities, the
Governor-General or the Governor exercised his individual
judgment and could overrule his Ministry;

(3) areas in which the Governor-General or the Governor acted in his
discretion, i.e., he personally controlled the administration directly
through his officers, without any Ministers.

The Government of India Act, 1935, provided that for the purpose of
discharging their discretionary and individual judgment functions, the
Governor-General and Governors could promulgate Ordinances. These
Ordinances would remain in force for a period of six months. The power
to make Ordinances was supplemented by a power to make Acts as well
in respect of such functions. If the Governor-General or a Governor failed
to persuade the Legislature to pass an appropriate Act, he could h im self
enact the necessary legislation: in fact so extensive was his power that he
could even promulgate such legislation, without reference to the Legislature,
merely sending it a message outlining the reasons for regarding such legislation
as essential. All these functions were to be exercised in his discretion.

In the field of ministerial responsibility, the Governor-General and the
Governor could, but only when the Legislature was not in session,
promulgate Ordinances, which remained valid until the expiry of six weeks
after the reassembly of the Legislature. In promulgating such Ordinances,

^Indian Statutory {Simon) Commission Report, 1930, Vol. I, para. 134.

^Government of India Act (1924 Reprint), section 67-B.

LEGISLATIVE TOWERS OF THE PRESIDENT AND THE GOVERNORS ' 475

they acted on the advice of their Ministers, and it became , the latter’s
responsibility once the Legislature was summoned to pilot the necessary
lawh

A major question which, engaged the attention of the Constituent
Assembly was whether the President at the Centre and the Governors in
the States should have the authority to promulgate Ordinances when the
Legislatures were not in session. If they were to wield such authority, what
should be the procedure: could these functionaries exercise their powers
acting on. their special responsibilities without prior consultation with their
respective Ministries ? Should such power vest only in the President but
not in the Governors,, though the latter could recommend the promulgation
of an Ordinance in a direct report to the President ?

The Constitutional Adviser included a clause in his memorandum of May
30, 1947 empowering the President to promulgate Ordinances when
Parliament was not in session. This power was subject to two conditions :
in the first place, an Ordinance could not make any provision which
Parliament was not competent to enact; and secondly, every Ordinance was
required to be placed before Parliament and would cease to operate at
the expiration of six weeks from the reassembly of Parliament. Parliament
could also by a resolution disapprove of an Ordinance, in which case it
would at once cease to have effecf .

Commenting on this provision, the Constitutional Adviser observed that
in the past the Ordinance-making powers of the Governor-General had been
the subject of much adverse criticism; but circumstances might arise where
the immediate promulgation of a law became absolutely necessary even
without an interval of time in which to summon Parliament. He quoted a
precedent in 1925 when Lord Reading, then Governor-General, had found
it necessary tO' make an Ordinance abolishing the import duty on cotton
when such action was immediately and imperatively required in the interests
of the country. The Constitutional Adviser also emphasized the change
in the character of the executive which, under the new Constitution, would
be responsible for the promulgation of an Ordinance. The President under
the new Constitution would be an elected person and act normally on the
advice of his Ministers in the discharge of his functions. In other words,
the Council of Ministers, which would in fact be responsible for making
Ordinances under this power, would depend for its existence on the
continued support and confidence of Parliament

The proposal was accepted without any modification by the U
Constitution Committee and approved by the Constituent Assembly. It was
then included in the Draft Constitution of February 1948" which was

^Government of India Act, 1935, sections 42-44, 88-90.

^Memorandum prepared by the Constitutional Adviser, May 30, 1947, Select
Documents 11, 15, pp. 4S5-'6,

^Article 102, Select Documents III, 6, p. 554.

476

FRAMING OF INDIANS CONSTITUTION

placed before the CoBstitueot Assembly for its consideration in November
1948.

This article was discussed by the Assembly on May 23, 1949. The
principal criticism was not so much against the conferment of a law-making
power ■ of , this kind on the executive even though the general feeling in the
Constituent Assembly was that such a power should be exercisable only
in a situation of great urgency. The criticism in the Assembly was directed
more against the length of time during which such an Ordinance would
remain in force without the specific approval of the Legislature. .Leading
this line of criticism was H. V. Kamath in whose view, since a period of
six months could elapse between two sessions of Parliament and an
Ordinance would be in force for six weeks after the commencement of a
session, a period of seven and a half months could pass during which an
Ordinance made by the executive could continue. His amendment sought to
require every Ordinance made by the President to be laid before Parliament
within four weeks of its promulgation\

Supporting this argument Hriday Nath Kunzru asserted that all legislation
should be subject to Parliamentary approval and the Constitution should
therefore require the executive to seek Parliamenfs approval for any
Ordinance issued by it without any delay. The Ordinance-making power of
the Governor-General under the Government of India Act, 1935, had, he
observed, always been unpopular. The Governor-General under that Act
was not even "'partially responsible” to the Legislature: and there was no
reason why with a responsible Ministry functioning, the process laid down
in the Act of 1935 should be copied in the new Constitution^

Two other amendments were moved. B. Pocker Sahib proposed that an
Ordinance should not have the effect of depriving the citizen “of his right
to personal liberty except on conviction after trial by a competent court
of law”. He referred critically to the way in which the various Provincial
Governments were enforcing Public Safety Acts and Ordinances; persons
had been arrested and detained for long periods without being given the
grounds on which such arrests were made. Unrestricted powers should not
be given to the executive to deprive citizens of their liberty^

Hukam Singh wanted it to be made clear that in promulgating Ordinances
the President should be required specifically to act only after consultation
with his Council of Ministers. There was no express requirement in the
Constitution that the President should always fallow the advice of his
Ministers. Though con venti^^ might develop, Hukam Singh feared that
they would do so slowly and in a matter of such importance, this requirement
should .:be. expressly stated^■ ■ ■

la A. Deb,, Vol. VIII, pp. 204-5,
pp. 206-7.

Hbid,, p, 203,
nUd,, p. 209,

LEGISLATIVE POWERS OF THE PRESIDENT AND THE GOVERNORS 477'

Ambedkar replied to' these criticisms. Referring to the ameadmeiits moved
by Kunzru and Kamath, he emphasized that while the provision in, ' the
Constitution .was that there should not be an interval of more, than six
months between two sessions of Parliament, the probability was that, owing
to the exigencies of Parliamentary business, there might in fact be more
frequent m-eetings of Parliament, Having regard to this fact and to the
necessity of the Government of the day retaining the confidence of
Parliament, Ambedkar thought that the new Government would not permit
any such dilatory tactics as were feared. The Government of India Act of
1935, Ambedkar pointed out, contained two different provisions relating
to Ordinance-making, Section 43, to which apparently Kunzru was referring,
conferred on the Governor-General power to promulgate Ordinances which
he felt were necessary for the discharge of his functions in circumstances
in which he would act in his discretion or exercise his individual judgment.
Such Ordinances could be promulgated by him even when the Legislature
was in session — ^he was in fact a parallel legislative authority. What the
Drafting Committee had sought to do was to enable the Union Government
to enact urgent legislation when Parliament was not in session.
He said :

My submission to the House is that it is not difficult to imagine cases
where the powers conferred by the ordinary law existing at any particular
moment may be deficient to deal with a situation which may suddenly
and immediately arise... The emergency must be dealt with, and
it seems to me that the only solution is to confer upon the President the
power to promulgate a law which will enable the executive to deal with that
particular situation because It cannot resort to the ordinary process of law
because again ex-hypothesi the legislature is not in session^

Dealing with the criticism of Hukam Singh, Ambedkar suggested that
his amendment was unnecessary “because the President could not and would
not act except on the advice of his Ministers”. On the specific question that
there was no provision in the Draft Constitution which bound the President
to act in accordance with the advice of his Ministers, Ambedkar replied that
^he Instrument of Instrudtions proposed for the President directed him
to be guided by the advice of his Ministers in all matters within the scope
of the executive power of the Unioai^. The President of the Assembly pointed
out that this provision would not be of much help because it related to
executive power and not to legislative power which was involved in the
promulgation of an Ordinance. Ambedkar mentioned that draft article 61,
which provided for a Council of Ministers to aid and advise the President
in the exercise of his functions, followed almost literally various other

^C. A, DekiVol. Vni, p. 214.'

®The proposal to issue an Instrument of Instructions to the President and to
Governors on these lines was subsequently abandoned. See Chapters on the Union
Executive and the Executive.

478 '

FRAMING OF INDIA’S' CONSTITUTION

constitutionsv and that Presidents had always understood that language to
mean that they must accept the advice. He promised, however, to remedy
the position by a suitable amendment if there was any difficulty. On being
put to vote, the amendments were negatived by the Assembly and the
proposal of the Drafting Committee was adopted as article 123 of the
GonstitutiDn.

So far as Governors are concerned, a similar power to promulgate
Ordinances has been conferred on them by article 213 of the Constitution.
As first framed in the memorandum of May 30, 1947', it was worded in
the same manner as the clause conferring Ordinance-making powers on the
President. But certain features of the Governor’s power came under discussion
at meetings of the Provincial Constitution Committee. The memorandum
also contained a separate provision that a Governor would have certain
special responsibilities, one of which was the prevention of a grave menace
to the peace and tranquillity of the Province or of any part — a special
responsibility which gave him power, to overrule his Ministers and even act
independently of them '"in his discretion”. The implication of this power
in relation to the making of Ordinances was explained by the Constitutional
Adviser at a meeting of the committee on June 9, 1947": although the
power as proposed in the memorandum authorized the Governor to issue
Ordinances on the advice of his Ministers, the Governor had the authority,
by virtue of his special responsibility, to issue Ordinances in his discretion
in the exercise of that special responsibility. The committee apparently
considered that these special personal powers of the Governor should be
expressly safeguarded : for it decided that this point should be made clear
in the draft. A suggestion was also made that the Governor should not
make an Ordinance by virtue of his personal power except in consultation
with the Presidenf .

These points were discussed at a joint meeting of the Union and the
Provincial Constitution Committees on June 10. At this meeting it was
decided that if in the Governor’s view there was a grave menace to the
peace and tranquillity of his Province or of any part thereof, he would report
to the President and appropriate action would be taken by the latter. It was
further clarified that while in the normal course the Governor would act
on the advice of his Ministers he could make such a report even, without
such advice\

Accordingly, the provision included in the Report of the Provincial
Constitution Committee regarding the promulgation of Ordinances was the

^Memorandum on the Provincial Constitution prepared by the Constitutional
Adviser, May 30, 1947. Select Documents 11, 21 (iii), p. 638.

^Select Documents 11, 22, p. 650.

Hbid.

^For further discussions on these emergency powers, see Chapter on Emergency
Powers.

LEGISLATIVE POWERS OF THE PRESIDENT AND THE GOVERNORS 479

same as that contained in the Constitutional Adviser’s memorandum\ It
was adopted without any discussion by the Assembly on July 21, 1947^
When the Drafting Committee- undertook the formulation of suitable
provisions in the' Draft Constitution, two matters had to be provided for,
which were peculiar to the powers, of the Governor. In regard to certain
categories of Bills passed by the State Legislature the Draft Constitution
required that they should be reserved for the consideration of the President
and would not have any validity without his assent. In order to provide
for Ordinances which fell in this category, a proviso was added requiring
the Governor to obtain the instructions of the President before promulgating
an Ordinance if an Act containing the same provisions would have been
required to be reserved for the consideration of the President®. This article
was discussed by the Assembly on June 14, 1949. Hriday Nath Kunzru
again moved an amendment providing that a Governor’s Ordinance should
not remain in operation for a period longer than two \veeks. He argued
that in a State where members of the Legislature lived in a compact area,
it would be much easier for them to meet for an urgent session. Shibban Lai
Saxena wanted that the sole authority to make Ordinances in India should
be vested in the Presidenf .

These amendments were, however, negatived by the Assembly and the
article as moved by the Drafting Committee was adopted. At the revision
stage, the article was further amended to provide for three categories of
cases in which the Governor would be required to obtain the instructions
of the President before promulgating an Ordinance : (1) where a Bill
containing the same provisions would have required the previous sanction
of the President for its introduction in the State Legislature; (2) where the
Governor would have considered it necessary to reserve for the President’s
assent any Bill containing the same provisions; and (3) where a law of
the State Legislature would have been invalid unless it was reserved for the
consideration of the President and had received his assent.

^Report of the Provincial Constitution Committee, clause 23. Select Documents II,
24, pp. 661-2.,

K:, A. Deh,. VoL IV, pp. 702-3.

®Draft Constitution, article 187. Select Documents III, 6, pp. 586-7.

X. A. Deb., Vol. VIII, pp. 869-72.

THE JUDICIARY

THE SUPREME COURT

Until April, 1937, the Government of India was essentiaEy unitary in
character: India was ruled by the British Government through its agents,
the Governor-General-in-Council and the Provincial Governments. The
devolution of powers and the system of “transferred subjects” in Provinces
under Ministers responsible to the Legislatures were first introduced
in 1921 : but subordination nevertheless continued to the Governor-
General-in-Council and through h im to the British Government. Tliere
was, therefore, nothing in the nature of a federal character in the relationship
between the Government of India and the Provincial Governments; and no
scope remained for the intervention of the judiciary in the determination of
the legislative or administrative relationships between them. It was in fact
expressly laid down in the Government of India Act of 1919 that the validity
of any Act of the Indian Legislature or of any local Legislature would not
be open to question in any legal proceeding on the ground that it affected
a provincial or a central subject.

The suggestion to set up a Supreme Court in India was contained in the
Nehru Report of 1928' : but in official thinking the idea of a Federal Court
first took practical shape when, following three Round Table Conferences
in 1930, 1931 and 1932, the British Government evolved a federal scheme
for India’s Constitution. The White Paper proposals of 1933 recommended
the establishment of two courts at the Centre. The Federal Court was to be
the ultimate judicial tribunal for the interpretation of the Constitution as
well as all questions concerning the respective spheres of the Federal and
Provincial authorities and of the Indian States: such a court, which was to
be independent of the Federal, Provincial and State Governments, was
considered to be an essential element in a federation consisting of a number
of political units, created by a Constitution which provided for the distribution
of powers between a central Legislature and executive on the one hand and
the Legislature and executives of federal units on the other.

The Federal Court was to have both an original and an appellate
jurisdiction. Its original jurisdiction was to determine justiciable disputes
between the Federation and any federal unit or between any two or more
federal units, involving the interpretation of the Constitution Act or any

^Select Documents I, 16, pp. 66-7.

THE JUDICIARY

481

rights or obligations arising .thereunder. The original jurisdiction of the
Federal Court was also to extend to any matter arising out of any agreement
between the Federation and a Province or a State, or between two Provinces
or between a Province and a State, unless the agreement provided otherwise.
Its apjwUate jurisdiction was to extend to the determination of appeals from
a High Court in a Province or the principal court in an Indian State on
questions involving the interpretation of the Constitution Act or any rights
or obligations arising out of the Constitution. The White Paper also proposed
that on the analogy of the jurisdiction conferred on the Judicial Committee
of the Privy Council in Great Britain by section 4 of the Judicial Committee
Act, 1833, the Governor-General should be empowered in his discretion to
refer to the Federal Court any justiciable matter on which he considered it
expedient to obtain the opinion of the court.

The White Paper was not sure of the necessity of establishing a Supreme
Court in addition to the Federal Court, with jurisdiction confined to British
India, and whose functions would be to act as a final court of appeal from
the decisions of Provincial High Courts on matters other than those which
fell within the jurisdiction of the Federal Court. The establishment of a
court of this kind would undoubtedly mitigate some of the grounds for
dissatisfaction which arose from the delays, expense and inconvenience
involved in the prosecution of appeals before such a distant tribunal as the
Privy Council in England. On the other hand, it was stated that there was
considerable support in India for the view that a Supreme Court would be
an unnecessary and unjustifiable expense and that it would be difficult
to find, in addition to the judges required for the Federal Court and the
Provincial High Courts, a body of judicial talent of the calibre essential if
it was to justify its existence. In the circumstances, the White Paper proposed
that, while the setting up of a Federal Court should be regarded as essential,
the right course in regard to the Supreme Court would be to empower the
Federal Legislature to set up such a court when there was sufficient unanimity
of view on the various questions that would arise; but that the Constitution
Act should itself lay down the powers and jurisdiction of the court if and
when it was established".

The idea of setting up two courts was. however, subsequently given up
and the Government of India Act of 1935 set up a single Federal Court with
original, appellate and advisory powers. Its original jurisdiction extended
to any dispute between two or more of the following parties, namely the
Federation, any of the Provinces or any of the federating Indian States. In
relation to the Indian States, however, it was specifically provided that the
jurisdiction of the Federal Court would not extend to an Indian State unless
the dispute concerned the interpretation of the Constitution Act itself or

^Proposals for Indian Constitutional Reform, 1933 (Comd. 4268), Introduction,
paras 63-6.

482

FRAMING OF INDIA’S CONSTITUTION

of an Order in Council made under it or the extent of legislative or executive
authority vested in the Federation by virtue of the Instrument of Accession
of the State ; or it arose imder an agreement, made after the establishment
of the Federation, with the approval of the Crown Representative, between
a State and the Federation or a Province, if the agreement expressly provided
that the jurisdiction of the Federal Court would extend to such a dispute.

The appellate jurisdiction of the Federal Court on constitutional issues
was more or less similar in British India and the Indian States but the
procedure for dealing with appeals was different. An appeal lay to the
Federal Court from any judgment, decree or final order of a High Court
in British India if the High Court certified that the case involved a substantial
question of law as to the interpretation of the Government of India Act of
1935, or an Order in Council made under it. Similarly, an appeal lay from
a High Court in a federated State in cases involving the interpretation of
the Act or of any Order in Council made under it or the extent of the
legislative and executive authority vested in the Federation by virtue of the
Instrument of Accession of the State. But appeals from federated States
were to be by way of special case stated for the opinion of the Federal
Court. The Federal Court was authorized to require a case to be so stated
and to return any case so stated in order that further facts might also be
stated; but the procedure for this was for the Federal Court to cause letters
of request to be sent to the Ruler of the State.

In addition to the powers of the Federal Court to adjudicate on
constitutional issues, the Act of 1935 empowered the Federal Legislature to
confer appellate jurisdiction, in respect of only British India, on the Federal
Court in two classes of cases;

(1) where the amount or value of the subject matter of the dispute
was fifty thousand rupees or such smaller sum not being less than
fifteen thousand rupees as might be specified in the law,

(2) where the Federal Court gave special leave to appeal.

The Government of India Act, 1935, also conferred an advisory jurisdiction
on the Federal Court on the lines recommended by the Wliite Paper ; the
Governor-General in his discretion could refer to the court for opinion any
question of law which in his opinion was of such a nature and of such public
imiKirtance that it was expedient to obtain the opinion of the Federal Court
upon IP.

The British Government exercised administrative control over the Federal
Court in several ways. All judges were to be appointed by the Crown.
One of the qualifications for a Federal Court judge was that he should be
a “barrister” of England or Northern Ireland, of at least ten years’ standing
or a member of the Faculty of Advocates in Scotland of at least ten years’
standing; and in fact the two persons who held the post of Chief Justice

^Government of India Act, 1935, Part IX.

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483

before independence were both Britishers. Further, the Federal Court was
not a court of final jurisdiction and appeals could lie to the Privy Council
in Britain. In spite of these limitations, the independence and impartiality
of the judiciary were well established in India and the Federal Court had
in its brief term also established and maintained' high traditions in the
administration of justice.

Thanks to the system of administration of justice established by the
British in this country, the judiciary until now has, in the main, played an
independent role in protecting the rights of the individual citizen against
encroachment and invasion by the executive power’.

The position of the Supreme Court under the Constitution came up for
consideration before the Constituent Assembly at a very early stage. Almost
simultaneously with the appointment of the Union Constitution Committee,
a special committee was set up to consider and report on the constitution
and powers of the Supreme Court. This committee consisted of S.
Varadachariar, a former judge of the Federal Court, Alladi Krishnaswami
Ayyar, B. L. Mitter, K. M. Munshi (all three of them advocates of distinction)
and B. N. Rau, the Constitutional Adviser who had also held high judicial
office. The committee sent its report^ on May 21, 1947 : its recommendations
were mainly based on the provisions of the Act of 1935. A Supreme Court
with jurisdiction to decide upon the constitutional validity of Acts and laws
should, the committee said, be regarded as a necessary implication of any
federal scheme ; but this jurisdiction need not belong exclusively to the
Supreme Court, and any such question of law might be permitted to be
raised in any court. In other words, the Supreme Court was to have a final
and appellate jurisdiction on questions relating to the constitutional validity
of laws. The committee further suggested that the Supreme Court, like the
Federal Court under the 1935 Constitution, would be the best available forum
for the adjudication of all disputes between the Union and a imit and between
one imit and another, and proposed that the court should have an exclusive
original jurisdiction in such disputes. The committee also recommended
that the Supreme Court should have an appellate jurisdiction in cases arising
out of treaties, especially on matters of extradition, between the Union and
a foreign State. It would also be open to the Union Legislature
to confer judicial power in respect of any matter, within its legislative
competence.

The committee referred to the proposal of the Advisory Committee on
Fundamental Rights that the right to move the Supreme Court by appropriate
proceedings for the enforcement of fundamental rights should be guaranteed
in the Constitution. The committee did not consider it desirable to make
the jurisdiction of the Supreme Court exclusive, as the citizen would in

’Comments and Suggestions on the Draft Constitution (Memorandum of Chief
Justices, 1948), Select Documents IV, I(i), p. 194.

^Select Documents II, 18(i), pp. 587-91.

484

FRAMING OF INDIA’S CONSTITUTION

practice be denied the benefits of fundamental rights if he had to seek the
help of the Supreme Court as the only court from which he could get redress.
The proposal of the committee was that, where there was no other court
with the necessary jurisdiction, the Supreme Court should have it; where
there was some other court with the necessary jurisdiction, the Supreme
Court would have appellate powers, including powers of revision.

As a consequence of the fact that the appellate authority of the Privy
Council would disappear with the new Constitution, the committee envisaged
a similar jurisdiction being conferred on the Supreme Court.

The committee also went into the question of the Supreme Court’s
jurisdiction in Indian States. Cases involving the constitutional validity of
laws would, according to the committee, necessarily fall within the jurisdiction
of the Supreme Court. In addition the committee recommended two
principles :

(1) that in cases involving interpretation of laws of the Union and laws
of units other than the State concerned, the final decision should rest
with the Supreme Court ; and

(2) it would be open to any Indian State to confer by special agreement
additional jurisdiction on the Supreme Court.

Dealing with the question of advisory jurisdiction, the committee observed
considerable difference of opinion among jurists and political thinkers as
to the expediency of placing on the Supreme Court an obligation to advise
the Head of the State on difficult questions of law. On balance, however,
the committee felt that it would be better to continue this jurisdiction, which
had already been conferred on the Federal Court by the 1935 Act. In order
to ensure that unnecessary references were not made and that the opinions
given were treated as authoritative pronouncements, the committee suggested
that all such references to the Supreme Court should be dealt with by the
full court.

Dealing with the organization of the Supreme Court, the committee
suggested that it should have at least two division benches, each consisting
of five judges. The committee was emphatic in its opinion that the
appointment of judges should not be left to the unfettered discretion of the
executive. Two alternative procedures were suggested. One method was
that, for the appointment of puisne judges, the President should in consultation
with the Chief Justice make a nomination, and such nomination would have
to be confirmed by at least seven out of a panel of eleven persons, composed
of some of the Chief Justices of High Courts, members of the Central
Legislature and some of the law officers of the Union. The alternative
method suggested was that the panel should put fonvard three names for every
vacancy, leaving the final choice to the President in consultation with the
Chief Justice. The same procedure (with the necessary modification that
the Chief Justice would not be consulted) was also to apply to the choice
of the Chief Justice. In order to ensure that the panel would be independent

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485

and command confidence it was suggested that every panel should function
for a period of ten years.

The committee agreed that the qualifications of judges might be laid down
in terms similar to those of judges of the Federal Court, as prescribed in
the Act of 1935; and that the age-limit might continue to be 65. But the
proposal to have temporary appointments of judges was considered
undesirable; the committee thought that the best way to deal with any sudden
or temporary increase in work would be by ad hoc appointment out of a
panel consisting of the Chief Justices and judges of the High Courts.

Referring to the ancillary powers of the court, the committee referred to
the restriction imposed on the Federal Court by section 209 of the 1935
Act. Under this section the Federal Court was required, when it allowed
an appeal, to remit the case to the court from which the appeal was made
with a declaration as to the judgment, decree or order which was to be
substituted for the judgment, decree or order appealed against, and the court
from which the appeal was brought was required to give effect to the decision
of the Federal Court. The conunittee said:

It does not seem to us necessary to continue the restriction now placed on
the Federal Court by section 209 of the Act of 1935. If the Supreme
Court takes the place of the Privy Council it may well be permitted to
pronounce final judgments and final decrees in cases where this is possible
or to remit the matter for further inquiry to the courts from which the
appeal has been preferred where such further inquiry is considered
necessary\

In his memorandum of May 30, 1947 on the Union Constitution, the
Constitutional Adviser adopted these recommendations with one modification :
namely that appointments of judges should be made by the President with
the approval of at least two-thirds of the Council of State. The Council of
State, it may be pointed out, was to be a body in the nature of a Privy
Council which the Constitutional Adviser had suggested for advising the
President on certain matters on which decisions were required on independent,
non-party lines. He noted that the Council of State would include the
Chief Justice of India among its members and its composition should be
such as to secure freedom from party bias. So constituted, he considered
that it would be a satisfactory substitute for the panel recommended by
the ad hoc committee. The Union Constitution Committee, however, did
not adopt the proposal for setting up a Council of State” on these lines, and
accordingly suggested that the procedure for the appointment of judges
should be for the President to consult the Chief Justice and such other judges
of the Supreme Court, as also such judges of the High Courts as might be
necessary. The committee adopted all the other proposals of the ad hoc

‘Report, Select Documents n(i), p. 589.

Chapter on the President and the Union Executive.

486

FRAMING OF INDIA’S CONSTITUTION

committee. The recommendation of the conamittee was ;

There shall be a Supreme Court with the constitution, powers and
jurisdiction recommended by the ad hoc committee on the Union judiciary,
except that a judge of the Supreme Court shall be appointed by the
President after consulting the Chief Justice and such other judges of the
Supreme Court, as also such judges of the High Courts as may be necessary
for the purpose".

These provisions were discussed in the Assembly on July 29, 1947. A
number of points were raised : Alladi Krishnaswami Ayyar moved an
amendment specifically declaring that a judge of the Supreme Court could
not be removed from his office except “on the ground of proved
misbehaviour or incapacity” and that too only by the President on an address
from both Houses of Parliament in the same session. He analysed the two
requirements prescribed by this amendment. First, the removal of a judge
would be an extremely rare occurrence, and the dignity of the office required
the special procedure of an address from both Houses of Parliament; this
was only following the tradition in Britain and in the Dominions of Canada,
Australia and South Africa. He commented :

The best testimony to such power is that it has never been exercised. It
is a wholesome provision intended to be a salutary check on misbehaviour,
not intended to be used frequently, and I have no doubt that the future
Legislatures of India which are invested with this power will act with that
wisdom and that sobriety which have characterized the great Houses of
Parliament. . .

Secondly, there must be “proved misbehaviour or incapacity”; adequate
machinery to “prove the charges” would be necessary but this could be left
to be provided by federal law°.

Various other points were raised in the course of the debate and several
amendments moved; the most important of these, moved by K. Santhanam,
sought in brief compass to make provision for the appointment and removal
of judges, their salaries and the jurisdiction of the court’. Replying to the
debate, N. Gopalaswami Ayyangar suggested that if the Assembly gave
its decision on the question of the procedure to be followed in respect of
appointment 'and removal, and generally accepted the report of the
ad hoc committee, there would be sufficient authoritative material on which
the relevant provisions of the Constitution could be drafted; and that the
other points taken in the course of the debate could be borne in mind at
the time of drafting*. The Assembly agreed to this suggestion and accepted
the committee’s report, together with Alladi Krishnaswami Ayyar’s suggestions
regarding the procedure for the removal of judges.

^Select Documents 11, 18(i), p. 583.

“C. ^. jDe6., Vol. IV, pp. 941-4.
p. 944.
p. 957.

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487

One other point needs to be mentioned at this stage. The Union Constitution
Committee had suggested in the transitional provisions contained in its
report that until the Supreme Court was duly set up under the Constitution,
the Federal Court would be deemed to be the Supreme Court and would
exercise all the functions of the Supreme Court ; but that all cases pending
before the Privy Council in the United Kingdom would be disposed of by
the Councir. Alladi Krishnaswami Ayyar considered any retention of
jurisdiction in the Privy Council after India had become a republic to be
inconceivable. He therefore moved an amendment transferring all such cases
to the Supreme Court : this proposal was accepted by the Assembly^. These
decisions were incorporated in the Draft Constitution prepared by the
Constitutional Adviser in October 1947.

Shortly thereafter the Constitutional Adviser visited the United States,
Canada and Ireland and discussed with some eminent persons in these
countries the relevant provisions adopted by India from their constitutions,
in the light of the defects which might have revealed themselves in their
actual operation. As a result of these discussions he made two suggestions
about the Supreme Court. In the first place, he stated that judges in the
United States had an option to retire upon attaining the age of seventy and
on completing ten years’ service in the Supreme Court; it was however
provided that a judge could, on retirement, as distinct from resignation
be invited to serve on the bench to hear a particular case. B. N. Rau
recommended this provision as worth copying in the Indian Constitution.

The second issue was one to which considerable importance was attached
by Justice Frankfurter of the U. S. Supreme Court. He was of the opinion
that the jurisdiction exercisable by the Supreme Court should be exercised
by the full court ; the highest court of appeal in the land should not sit in
divisions. If it did there would be the danger that a division might, by
distinguishing between the decisions of other divisions in a way familiar to
lawyers, make the law uncertain. H the work before the Supreme Court
proved to be excessive, the best way of correcting the situation would be
not by empowering the court to sit in divisions, but by reducing the number
of appeals as of right®.

In preparing the articles on the Supreme Court, the Drafting Committee
had before it the Constitutional Adviser’s Draft of October 1947 as well as
these views. The Chapter on the Supreme Court, as it emerged from the
Drafting Committee’s deliberations, contained twenty-one articles (103-123)“.
It provided that the Supreme Court would consist of a Chief Justice and
such number of other, judges not less than seven as might be fixed by

^Report, Part XI, 3, Select Documents II, I8(i), p. 586.

'C. X. Dei., Vol. IV, p. 1042.

^Select Documents III, 2, pp. 219-20.

“Draft Constitution prepared by the Drafting Committee, Feb. 1948, Se/ec/
Documents lYL, 6, pp. 55A~Gl.

488

FRAMING OF INDIA’S CONSTITUTION

Parliament. The retiring age of judges was fixed at sixty-five ; and no judge
could be removed from office except by an order of the President passed
“after an address supported by not less than two-thirds of the members present
and voting has been presented by both Houses of Parliament in the same
session for such removal on the ground of proved misbehaviour or
incapacity”. The procedure for presenting such an address and for the
investigation and proof of misbehaviour or incapacity was to be laid down
by law. The appointment of judges was to be made by the President after
consultation with such of the judges of the Supreme Court and the High
Courts as might be necessary for the purpose, consultation with the Chief
Justice of India being compulsory in the case of appointment of puisne
judges to the Supreme Court. The salaries and allowances of judges were
to be determined by an Act of Parliament : and untU. such an Act was passed,
they would be prescribed by the Constitution.

Two methods were provided for filling temporary vacancies in the Supreme
Court. In a situation where a quorum of judges was not available, the Chief
Justice could, after consultation with the Chief Justice of a High Court,
request one of the judges of that High Court to servo as an ad hoc judge
at the sittings of the court. Alternatively, he could request a retired judge
of the Supreme Court to function as a judge.

The jurisdiction of the Supreme Court was laid down on the lines already
approved by the Assembly. It was to have exclusive original jurisdiction
in all disputes :

(i) between the Government of India and one or more States ;

(ii) between the Government of India and any State or States on one
side and one or more States on the other; or

(iii) between two or more States.

It was to have appellate jurisdiction in all cases involving a substantial
question of law as to the interpretation of the Constitution; but an appeal
could be entertained on this ground only on a certificate given by the High
Court or, where the High Court refused a certificate, by special leave of
the Supreme Court. Appellate jurisdiction was also conferred on the Supreme
Court in civil cases of the value of twenty thousand rupees; but this was
subject to the condition that if the High Court had aOirmed the judgment
of the lower court, a certificate was necessary from the High Court to the
effect that the appeal involved a substantial question of law. It was, however,
open to a High Court to certify in any civil case that it was a fit one for
appeal to the Supreme Court ; and it was also open to the Supreme Court to
grant special leave in any case, civil or criminal.

The position in regard to Indian States at this time was that they were
to join the Union by virtue of an act of accession evidenced by agreements
between the State (or group of States) and the Government of India, which
would also specify the limitations to which the legislative power of the
Parliament would be subject. The provision empowering Parliament to

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489

make laws for Indian States was contained in article 225 of the Draft
Constitution :

Notwithstanding anything in this Chapter, the power of Parliament to
make laws for a State or a group of States for the time being specified
in Part III of the First Schedule shall be subject to the terms of any
agreement entered into in that behalf by that State or group of States with
the Government of India and the limitations contained therein.

The general description outlined above of the jurisdiction of the Supreme
Court applied only to the territory of the Indian Dominion— what was
previously British India — and special provisions were included so far as the
Indian States were concerned. It was provided that the original jurisdiction
of the Supreme Court would not extend to a dispute to which an Indian
State was a party if the dispute arose out of a treaty or agreement made before
the commencement of the Constitution : and further that such jurisdiction
would not extend to a dispute to which any State was a party if the dispute
arose out of a treaty or engagement which excluded the jurisdiction of the
Supreme Court. Further, the appellate jmrisdiction of the Supreme Court
under the Draft Constitution would be exercisable in respect of Indian
States only where the High Court of the State certified that the case involved
a substantial question of law as to the interpretation of the Constitution ; or
where the Supreme Court gave special leave on that ground. The appellate
jurisdiction of the Supreme Court on matters other than those which involved
an interpretation of the Constitution was not at this stage exercisable in
Indian States.

The Draft contained a further special provision to be adopted in respect
of Indian States. Where, in the course of proceedings in a High Court of an
Indian State, any question as to the applicability or interpretation of any
law of Parliament or of the Legislature of any other State arose and was
material for the determination of any issue before the court, the High Court
of the Indian State was directed to draw up a statement of the case and refer
it to the Supreme Court for its opinion. Further proceedings in the High
Court were to be stayed until the opinion of the Supreme Court was received
and, on receipt of such opinion, the High Court was required to dispose of
the case in conformity with it.

The Draft Constitution also provided for the advisory jurisdiction of the
Supreme Court : the President was authorized to refer any important question
of law or fact to the Court and obtain its opinion.

The salaries, allowances and pensions of the staff of the Supreme Court
were to be determined by the Chief Justice in consultation with the President;
and all administrative expenses of the Court were outside the vote of
Parliament.

These were the main provisions regarding the Supreme Court. The
Drafting Committee was of the view that the minimum number of judges
who were to sit for the purposes of deciding an issue on the interpretation

490

FRAMING OF INDIA’S CONSTITUnON

of the Constitution or an advisory reference made by the President should
be five; and it would further be open to every judge to sit on the bench
for hearing such cases unless owing to iUness, personal interest or other
sufficient cause he was unable to do so. The committee drew pointed
attention to the practice in the United States of America :

In the Supreme Court of the United States of America all the judges of the
Court are entitled to participate in the hearing of every matter, and
the Court never sits in divisions. The judges of that Court attach the
greatest importance to this practice. The committee is of opinion that
this practice should be followed in India at least in. two classes of cases,
namely, those which involve questions of interpretation of the Constitution
and those which are referred to the Supreme Court for opinion by the
President. Whether the same practice should not be extended to other
classes of cases is a matter which Parliament may regulate by law'.

In Part XVII of the Draft Constitution relating to transitional provisions,
the Drafting Committee included an article (308) which provided ;

(1) that the judges of the Federal Court holding office immediately before
the commencement of the Constitution would become judges of the
Supreme Court ;

(2) that all suits, appeals and proceedings then pending before the
Federal Court would stand removed to the Supreme Court ; and

(3) that the appellate jurisdiction of the Privy Council would terminate
and aU cases pending before the Privy Council would be transferred
to the Supreme Court.

When the Draft Constitution was circulated, several suggestions were
received. There was a joint memorandum representing the views of the
Federal Court and of the Chief Justices of the Provincial High Courts; and
in addition suggestions came from the High Courts, Provincial
Governments and other official organizations, as well as from private
individuals.

Generally speaking, there was consensus of opinion in favour of the basic
principles governing the jurisdiction and powers of the Supreme Court as
outlined in the Draft Constitution and most of the comments received stressed
the need to maintain the independence of the judiciary. Thus, the
Conference of Chief Justices suggested that the procedure for the appointment
of Supreme Court judges should be that the Chief Justice should make his
recommendation direct to the President. The Chief Justices were of the
view that the appointment of judges should be mostly from among judges
of High Courts or leading members of the Bar; and, in order to attract men
of sufficient standing, it was proposed that their tenure as well as retirement
benefits should be sufficient to maintain themselves with the necessary dignity;

‘Draft Constitution prepared by the Drafting Committee, Feb. 1948. Select
Documents III, 6, art 121, footnote, pp. 560-1.

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491

accordingly the judges suggested sixty-eight as the retiring age and a pension
of 70 per cent of the salary".

The Drafting Committee itself suggested a number of amendments to these
provisions. The most important of these was consequent on the draft
Instrument of Instructions to be issued to the President" which the committee
proposed to include as Schedule IIIA. One of the provisions proposed to be
included in the Instrument of Instructions was the setting up of an Advisory
Board consisting of not less than fifteen members of Parliament. The
procedure contemplated for the appointment of Supreme Court judges was :

(1) in the case of the Chief Justice of India, the President would consult
the judges of the Supreme Court and the Chief Justices of all High
Courts other than those in Part III States (the Indian States) ;

(2) in the case of other judges he would consult the Chief Justice of
India, the other judges of the Supreme Court and the Chief Justices
of High Courts, other than those in Part III States ;

(3) the recommendations of the judges so consulted would be placed
before the Advisory Board for its advice. The functions of the Board
were consultative and the final decision rested with the executive, but
in any case where the Board’s advice was not accepted it could insist
that its dissent should be recorded and placed before Parliament with
a memorandum explaining the reasons for not accepting the advice
tendered by the Board.

Because of these elaborate provisions, the requirement in draft article 103
that these appointments would be made after consultation with judges of
the Supreme Court and the High Courts became unnecessary and notice of
an amendment was given to omit it’. The article was considered by the
Assembly on May 24, 1949* : but Ambedkar did not move this amendment.
The position at the time was that on the suggestion made by Ambedkar the
principle of issuing an Instrument of Instructions to the President had been
approved by the Assembly ; and it can only be presumed that in not moving
the amendment he was anticipating the decision reached later that the
proposal for the inclusion in the Constitution of an Instrument of Instructions
for the President would be dropped. The article as proposed by the Drafting
Committee was adopted, with certain verbal changes.

The amendments moved by other members raised three issues : the
procedure for. the appointment of judges; the age of retirement; and the
acceptance of office by judges after retirement’. On the first issue Ambedkar

'Comments and Suggestions on the Draft Constitution, Select Documents IV, l(i),
pp. 195 fl.

^See also Chapter on the President and the Union Executive.

^Comments and Suggestions on the Draft Constitution, Select Documents IV, l(i),
p. 147.

*C. A. Deb., Vd. Vm, pp. 729-63.

’‘Ibid., p. 258.

492

FRAMING OF INDIA’S CONSTITtmON

dealt mainly with two suggestions made : the first suggestion was that the
appointment of judges should be with the concuirencje of the Chief Justice :
and the second proposed that the approval by Parliament (or alternatively
by the Council of States) would be necessary to these appointments.
Ambedkar accepted neither of these : to make appointments subject to the
vote of Parliament would be cumbrous and might involve the possibility
of their being influenced by political pressure. On the other hand, to give
any individual, even an eminent person like the Chief Justice, a power
of veto might be a “dangerous proposition”. The proposal in the
draft article that there should be consultation with persons ex hypothesi
well qualified to give proper advice should, he thought, be regarded
as sufficient.

As regards the age of retirement various views had been expressed. Jaspat
Roy Kapoor had suggested that judges of the Supreme Court should retire
at sixty, but proposed to confer on the President power to grant extensions
in individual cases from year to year upto sixty-five years ; B. Pocker Sahib
wanted the age of retirement to be raised to sixty-eight; and Satish Chandra
had moved an amendment that the age of retirement should be fixed by Act
of Parliament from time to .time. Ambedkar dealt with these suggestions.
He was of the view that the age of superannuation should be laid down in
the Constitution itself and not left to be decided from time to time by Act
of Parliament. He pointed out that before accepting a place on the Bench
an incumbent would like to know how long in the normal course he would
hold the office. He admitted that sixty-five could not always be regarded
as zero hour in a man’s intellectual ability; but he drew attention to draft
article 107 under which it would be open to the Chief Justice to call a
retired judge to sit and decide particular cases ; there would consequently
be less possibility of losing the talent of individuals. Ambedkar urged the
Assembly to accept the retirement age of 65.

On the third issue of acceptance of office after retirement, two members
(K. T. Shah and Jaspat Roy Kapoor) had suggested that retired judges should
not hold any office of profit. Ambedkar pointed out that the judiciary
normally decided cases in which the Government had “remote” interest. It
would be engaged in deciding issues between citizens ; and the chances of
influencing the conduct of a member of the judiciary by the Government
would be very remote. Besides, there were many cases where the employment
of judicial talent in a specialized form would become very necessary. For
these reasons he opposed the proposal to ban the acceptance of office by
judges after retirement.

After this explanation the Assembly rejected all these amendments. It
adopted, however, an amendment moved by H. V. Kamath to enable a
distinguished jurist to be appointed as a judge of the Supreme Court even
if he did not have the qualification of the requisite number of years as an
advocate or a judge.

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493

For the rest, though there was considerable discussion of the various
provisions of the Draft Constitution, controversy mainly centred round the
civil and criminal jurisdiction of the Supreme Court. By and large speakers
on the provisions relating to the Supreme Court were concerned with
conferring on the court as large a measure of appellate jurisdiction
as possible. An extreme view was put forward by Naziruddin Ahmad
that in aU cases where a substantial question of law was involved,
a High Court should grant a certificate and the Supreme Court empowered
to hear appeals*. Criticism from other membere was directed in particular
against the Draft Constitution on the ground that while an appeal lay as
a matter of right in all civil cases of the value of over Rs. 20,000, appeals
in criminal cases, even where death sentences were involved, could be
preferred only with the special leave of the Supreme Court. The view of
the Drafting Committee, as expounded by Alladi Krishnaswami Ayyar,
Munshi and Ambedkar, was that the Supreme Court had already “wider
jurisdiction than any superior court in any part of the world’”; Munshi
made the point that conferring a right of appeal in criminal matters on the
Supreme Court would mean not less than a hundred judges. Munshi also
invited attention to an amendment of which the Drafting Committee had
given notice, which would empower Parliament to confer appellate powers
on the Supreme Court in criminal cases’. He pointe'd out that there were
several considerations involved in a proposal of this kind; and it would be
better if this was left to Parliament to decide, rather than by the imposition
of a liability on the Supreme Court in the Constitution itself to hear all
criminal appeals irrespective of limitations or restrictions; Ambedkar also
held the same opinion. His view was that at that stage it would be enough
to confer upon Parliament the power to vest the Supreme Court with
jurisdiction in criminal appeals.

The final decision of the Drafting Committee was, however, different; on
June 14, 1949, Ambedkar moved a new article 111-A conferring on the
Supreme Court appellate criminal jurisdiction in cases where —

(i) the High Court had on appeal reversed an order of acquittal of an
accused person and sentenced him to death ;

(ii) the High Court had withdrawn a case for trial before itself from
a subordinate court and sentenced the accused person to death ;

(iii) the High Court had certified that the case was a fit one for appeal
to the Supreme Court*.

There was considerable support for this amendment and Ambedkar
advocated its adoption on the principle that where a man was sentenced to
death, he should have at least one right of appeal. The new article was

■C. X Del.., Vol. Vm, p. 593.

Hbid., p. 596.

nbid., p. 607.

nbid., p. 840.

494

FRAMING OF INDIA’S CONSTITUTION

adopted by the Assembly and with verbal changes made at the revision
stage it now figures as article 134.

As already noticed, the jurisdiction and powers of the Supreme Comt, as
set out in the Draft Constitution, were different in relation to the Indian
States from what they were over the Provinces. The Draft Constitution
provided (article 109) that the original jurisdiction on disputes between the
Union and the units or the units Mer se would not extend in the case of
“States for the time being specified in Part III of the First Schedule” — namely
the Indian States — to disputes arising out of any treaty or agreement executed
before the commencement of the Constitution, or to any such agreement
concluded after that date which provided that the jurisdiction of the Supreme
Court would not extend to such a dispute. Likewise, draft article 111 provided
that the appellate jurisdiction of the Supreme Court in civil cases not
involving interpretation of the Constitution would not extend to these Part
III States. By the time these provisions came up for consideration by the
Assembly, the position of the States had changed. The democratization of
the States and their integration had made considerable progress; and above
all there was a strong and unanimous feeling in the Assembly that the Supreme
Court should have equal jurisdiction and authority over the whole of India.
Accordingly, amendments were moved to articles 109 and 111 omitting all
references to these States and extending the jurisdiction of the Supreme Court
to all High Courts “in the territory of India”'. These amendments had the
full support of all sections of the Assembly and were adopted. It will be
recalled that draft article 113 provided that appellate jurisdiction in certain
classes of cases in the Indian States would be by way of a statement of the
case referred for the opinion of the Supreme Court. In the new situation
this article became unnecessary and was omitted^.

Two other amendments moved by T. T. Krishnamachari and Ambedkar
on behalf of the Drafting Committee laid down that the President’s approval
would be necessary —

(1) for the appointment of ad hoc judges by the Chief Justice^; and

(2) for the fixation of salaries, allowances, leave and pensions of the
staff of the Supreme Court*.

The first proposal was justified on the ground that as the appointments
of an judges of the Supreme Court were to be made by the executive, any
addition should also require a reference to the executive. This was approved
without discussion, but the second proposal encountered the criticism that
it would be inconsistent with the principle of the independence of the
judiciary. The argument put forward in favour of the proposal was that
while the Court should enjoy full independence in the matter of control

'C. Det.., Vol. VIII, pp. 588 and 615.

nbid., pp. 641-2.

Hbid., p. 376.

VAW., p. 388.

THE JUDICIARY

495

over its establishment, it should fall in line with other similar establishments
about the general scale of salaries etc. The article as amended was
eventually adopted. Some other changes, mainly intended to clarify certain
matters, were also adopted; and at the revision stage the articles became
124 to 147.

One question which the Assembly had to consider was the disposal of
cases pending before the Privy Council. The Draft Constitution contained
an article 308(3) among the temporary and transitional provisions which,
among other things, laid down that as from the date of the commencement
of the Constitution the jurisdiction of the Privy Council would terminate
and that all pending appeals would be transferred to, and disposed of by,
the Supreme Court. The position was, however, reviewed in the course of
the passage of the Constitution. In September 1949 there were sixty-nine
civil appeals pending before the Privy Council, as well as ten criminal appeals
in which special leave had been granted. Of these, twenty cases had already
been posted for hearing and were expected to be completed by January 26,
1950. To provide for these cases, the Abolition of Privy Council Jurisdiction
Bill was considered and adopted by the Constituent Assembly on September
17, 1949. It abolished the jurisdiction of the Privy Council in respect of
Indian appeals with effect from October 10, 1949 and transferred all pending
cases to the Federal Court by enlarging its jurisdiction correspondingly :
but it also empowered the Privy Council to dispose of those cases in which
the Council had reserved judgment, as well as those which had been posted
for hearing for the “Michaelmas sittings of the year 1949’”. To conform to
this arrangement an amendment was moved to draft article 308(3) on October
10, 1949, continuing the authority of the Privy Council to dispose of these
appeals®. The new clause read ;

Nothing in this Constitution shall operate to invalidate the exercise of
jurisdiction by His Majesty in Council to dispose of appeals and petitions
from, or in respect of, any judgment, decree or order of any court within the
territory of India in so far as the exercise of such jurisdiction is authorized
by law, and any order of His Majesty in Council made on any such appeal
or petition after the commencement of this Constitution shall for all
purposes have effect as if it were an order or decree made by the Supreme
Court in the exercise of the jurisdiction conferred on such court by this
Constitution.

The amendment also abolished all authorities functioning as Privy Councils
in Indian States, and transferred their pending cases to the Supreme Court.
In spite of some opposition the Constituent Assembly adopted this
amendment as being the best workable arrangement. It now figures as
article 374.

Ac. Vol. IX, pp. 1589-618.

yWd. Vol. X, p. 72.

496

FRAMING OF INDIA’S CONSTITUTION

NOTE ON AMENDMENTS

Article 124 : The Constitution (Fifteenth Amendment) Act, 1963, added
a new clause (2-A) providing that the age of a judge of the Supreme Court
should be determined by such authority and in such manner as Parliament
might by law provide.

Article 128: The Constitution (Fifteenth Amendment) Act amended
article 128 by enabling the appointments as ad hoc judges not only of retired
judges of the Supreme Court and the Federal Court but also of retired
judges of High Courts qualified for appointment as judges of the Supreme
Court.

Article 131: The Constitution (Seventh Amendment) Act, 1956, which
abolished the category of Part B States, amended the proviso to this article
omitting all references to Part B States by deleting clause (1) of the proviso.

A consequential verbal amendment was also made to article 143(2).

fflGH COURTS

The task of the Constituent Assembly in regard to the provisions regarding
the High Courts was comparatively simple. The High Courts as institutions
had been functioning in India for nearly ninety years and built up a tradition
for independence and impartiality. All the Provinces did not, however, have
High Courts at the time of the transfer of power in August, 1947. The
Calcutta High Court exercised jurisdiction over Assam, and the Patna High
Court over Orissa : the United Provinces had two High Courts, the High
Court of Allahabad and the Chief Court with headquarters at Lucknow,
both exercising appellate jurisdiction. But by July 1948 this position had
changed. Separate High Courts had been established for Assam and Orissa,
and the Chief Court at Lucknow had been amalgamated with the High Court
at Allahabad : there was thus a High Court for every Province
in India'.

The jurisdiction and powers of the High Courts rested almost entirely
on the provisions of the enactments made by the various Legislatures in
India. Central Acts determined the jurisdiction of the High Courts in respect
of matters on which the Central Legislature had power to make laws ; and
Provincial Acts laid down their jurisdiction in matters where the Provincial
Legislatures had the law-making power.

The Government of India Act, 1935, as well as the constitutional
enactments preceding it, included well thought-out provisions laying down
the constitution of High Courts, provisions as to judges, the administrative
powers of the courts, their powers over subordinate courts and other matters,
both judicial and administrative. In the earlier stages of constitution-making,

^D. D. Basil, Commentary on the Constitution of India, p. 514.

THE JUDICIARY

497

therefore^ the main question to engage consideration was the independence
of judges.

Judicial independence was ensured primarily through the procedure for
the appointment of Judges and fixity of a tenure for them. Under the British
regime all permanent appointments of judges were made by the Crown;
at one time there was a rule of law that one-third of the judges of a High
Court should be barristers of England or Ireland or members .of the Scottish
Faculty of Advocates; and at least one-third had to be members of the Indian
Civil Service. This requirement was abolished in 1937 when the Government
of India Act of 1935 came into force; but the practice of appointing judges
from the United Kingdom, commended by the Joint Select Committee in
1934 “in the interests of the maintenance of British legal traditions’”
continued.

When the principles of the Constitution were being discussed, there was
general agreement that as in the case of Supreme Court judges the
appointment of judges of High Courts should also not be left to the
imfettered discretion of the executive Government. In reply to B. N. Rau’s
questionnaire of March 17, 1947, several suggestions were received as to the
manner of appointment of High Court judges, including one that the head
of the judiciary should be elected by the Provincial Assembly In his
memorandum of May 30, 1947, on the Provincial Constitution, the
Constitutional Adviser included a general suggestion that the provisions of
the Government of India Act, 1935, regarding High Courts might be adopted
with necessary changes; on the specific question of the appointment of High
Court judges, his proposal was that they should be appointed by the
Governors with the approval of two-thirds of the members of the Council
of State’.

The Provincial Constitution Committee accepted this proposal, but the
proposal to set up a Council of State had been abandoned in the meantime
and the committee proposed that judges of High Courts should be appointed
by the President of the Federation in consultation with the Chief Justice of
the Supreme Court, the Governor of the Province and the Chief Justice of
the High Court of the Province (except when the Chief Justice himself was to
be appointed). Explaining this proposal in the Assembly on July 21, 1947,
Vallabhbhai Patel said that these proposals were designed to ensure fair
appointments to the High Courts so that the judiciary would be above even
the suspicion of party influence’. For the rest, the committee’s report agreed
that the provisions of the 1935 Act might be adopted.

^Joint Select Committee on Constitutional Reform, Report, 1934, para. 331.

^Select Documents 11, pp.

^Ibid., 11, 21(ii), p. 640. The Council of State as proposed by B. N. Rau
was a body in the nature of a Privy Council to be set up at the Centre to advise
on several matters.

'C. A. Deb., YoL TV, p. m.

498

FRAMING OF INDIA’S CONSTITUTION

At this point AUadi Krishnaswami Ayyar put forward three proposals.
He wanted the Constitution specifically to provide that—

(a) all the High Courts in the Union of India would have the right
to issue prerogative writs or any substituted remedies therefor
throughout the area subject to their appellate jurisdiction ;

(b) the restriction as to jurisdiction in revenue matters referred to in
section 226 of tlie Government of India Act, 1935, should no longer
apply to High Courts; and

(c) in addition to the powers enumerated in section 224 of the
Government of India Act, 1935, the High Courts should have powers
of superintendence over subordinate courts as under section 107 of
the Government of India Act, 1915.

Both Alladi Krishnaswami Ayyar and K. M. Munshi gave an explanation
of the somewhat technical implications of these proposals'. It was urged
that, under the law as it stood, only the High Courts of Madras, Bombay
and Bengal had the right to issue prerogative writs within the limits of
their ordinary original jurisdiction. Other High Courts did not have this
power, nor did the power of the three High Courts extend beyond the three
towns of Madras, Bombay and Calcutta, where they exercised original
jurisdiction. The new Constitution for a free India would be a kind of
charter, containing the fundamental rights of citizens, and the intention of
the first proposal of Alladi Krishnaswami Ayyar was that all the High Courts
should for this pm'pose have within their jurisdiction powers to issue writs.

The second proposal was intended to remove the restriction contained in
section 226(1) of the Act of 1935, which laid down that until otherwise
provided by Act of the appropriate Legislature, no High Court would have
any original jurisdiction in any matter concerning the revenue, or concerning
any act “ordered or done in the collection thereof according to the usage
and practice of the country or the law for the time being in force”. Munshi
made it clear that this was being done only “as a matter of histoiy” and
that even in revenue matters the jurisdiction of the High Courts would be
exercised in accordance with the law.

The third proposal was apparently meant to remove the restriction contained
in section 224 of the Government of India Act, 1935. which laid down :
Nothing in this section shall be construed as giving to a High Court any
jurisdiction to question any judgment of any inferior court which is not
otherwise subject to appeal of revision.

These three proposals were readily accepted by Vallabhbhai Patel, the
Chairman of the Provincial Constitution Committee, and adopted by the
Assembly.

These decisions were incorporated and given legal shape in the Draft
Constitution of October 1947 prepared by the Constitutional Adviser.

1C. A. Deb., Vol. rv, pp. 710-20.

THE JUDICIARY

499

Following the scheme of the Government of India Act, 1935, High Courts
were treated as provincial institutions, except that all appointments of
judges were to be made by the President of India after consultation with
the Chief Justice of the Supreme Court, the Governor of the Province, and
in the case of appointment of a judge other than the Chief Justice, the Chief
Justice of the Provincial High Court. The Draft provided that a judge
of a High Court should retire at sixty or at such higher age as might be
fixed by provincial law. Likewise, the salaries and other conditions of
service of judges were to be fixed by provincial law, and until so fixed they
were to be included in the Constitution in a schedule. For the rest the
Draft Constitution closely followed the Act of 1935, even to the extent of
including as one of the qualifications for appointment of a judge the
requirement that a person should be “a barrister of England or Northern
Ireland of at least ten years’ standing or a member of the Faculty of
Advocates in Scotland of at least ten years’ standing”^ — a qualification which,
as Alladi Krishnaswami Ayyar pointed out in the case of Supreme Court
judges, was unnecessary as “there cannot be any idea of importing a barrister
from England and as a barrister (in India) has a right of audience in a
High Court only by being enrolled as an advocate of the said court”“.

Subsequent discussions centred mostly on the position to be accorded to
the judges — the method of their appointment, the age of superannuation, the
procedure for removal in the event of misbehaviour or incapacity, the right
to practise at the Bar after retirement, their salaries and allowances and
other matters affecting their position and independence as judges.

Following the decision of the Constituent Assembly, the Draft Constitution
prepared by B. N. Rau laid down that all appointments of High Court
judges would be made by the President of India; and that he would, before
making such appointments, consult the Chief Justice of the Supreme Court,
the Governor of the Province and, except where the Chief Justice of a
High Court was himself to be appointed, the Chief Justice of the High
Court“. The Drafting Committee also adopted this formula*. As in the
case of Supreme Court judges, the draft Instrument of Instructions to be
issued to the President laid down a detailed procedure which not only
required consultation with the Chief Justice of India, the Chief Justice of
the High Court and the Governor, but also directed the President to obtain
the advice of an Advisory Board of the Houses of Parliament. (This proposal
was subsequently dropped'.)

There was considerable support, both in the Assembly and outside, for
the proposal that in the appointment of High Court judges, the Chief Justice

^Select Documents III, l(i), clause 164, p. 68.

Hbid., Ill, I(iv), pp. 207-8.

=lbid.. Ill, l(i), clause 164, pp. 67-9.

‘Draft Constitution, February 1948, article 193. Select Documents III, 6, pp. 589-90.

‘See Chapter on the President and the Union Executive.

500 FRAMING OF INDIA’S CONSTITOTION

of India, ths Governor of the State and the Chief Justice of the High Court
(except where the Chief Justice himself was being appointed) should be
consulted. The Conference of the judges of the Federal Court and the
Chief Justices of the High Courts held in March 1948 presented a
memorandum containing their unanimous views on matters affecting the
judiciary. This memorandum was severely critical of certain practices which
had grown up as tending to lower the prestige and dignity of High Courts.
It observed :

It appears that a certain Provincial Government has issued directions that
recommendations of the Chief Justice, instead of being sent to the
Premier (of the Province), should be sent to the Chief Secretary, who, in
some instances, has asked his Assistant Secretary to correspond further
with the High Court in the matter. Thus, there seems to be a growing
tendency to treat the High Court as a part of the Home Department of
the Province*.

In order to check this tendency the memorandum suggested that the
recommendation of the Chief Justice of a High Court should be sent direct
to the President who would then take steps to consult the Governor of the
State and the Chief Justice of India. The proposal contained in the
memorandum for the appointment of High Court judges was that these
appointments would be made by the President “on the recommendation of
the Chief Justice of the High Court concerned after consultation with the
Governor of the State concerned and with the concurrence of the Chief Justice
of India”. In the Assembly this suggestion was moved as an amendment by
B. Pocket Sahib’. Some other members suggested doing away with
consultation with Governors about these appointments; and Shibban Lai
Saxena sought to provide by an amendment that, as in the case of Supreme
Court judges, a body of judges of the Supreme Court and the High Courts
should be consulted on these appointments. In the end. however, the
proposals of the Drafting Committee were adopted by the Assembly. {See
article 217 of the Constitution.)

Another matter on which there was much discussion related to the retiring
age of judges. B. N. Rau in his Draft Constitution had suggested sixty
years or such higher age as might be fixed by an Act of the local
Legislature*. The Drafting Committee adopted this formula with one
change, viz. that no such Act could continue a High Court judge in office
beyond the age of sixty-five*. The memorandum of the judges suggested
an age limit of 65; but in any case, this was a matter appropriately to be
provided for in the Constitution and not left for determination by State

‘Comments and Suggestions on the Draft Constitution. Select Documents IV,
l(i), p. 195.

*C. A De6., Vol. Vin, p. 658.

‘Select Documents III, l(i), clause 164, pp. 67-8.

nbid: ni, 6, article 193, p. 589.

THE JtJDICIARy

501

Legislatures'. The Ministry of Home Affairs was of the view that High
Court judges should normally retire at sixty, but that a provision might be
made enabling the President in exceptional circumstances to extend the
service of an individual judge up to sixty-three, so as to retain the services
of judges of exceptional talent and vitality". The Special Committee
constituted by the President, consisting mostly of members of the Union
Constitution Committee, the Provincial Constitution Committee and the
Union Powers Committee, also considered this matter. This committee
came to the conclusion that Parliament and not the State Legislatures might
be empowered to fix a higher age-limit than sixty, but that this should be
uniform and there should be no differential treatment of individual cases’.
After considering all these comments T. T. Krishnamachari, on behalf of
the Drafting Committee, moved an amendment lo the effect that no judge
could continue in office after sixty, which would therefore be the age of
retirement for all judges without exception. Explaining this he said that
the advantage lay in fixing the age of retirement in the Constitution itself
and not allowing any room for private canvassing so that people would know
definitely that this could not be changed except by an amendment of the
Constitution*. Elaborating this point further, K. M. Munshi referred to
his experience which had shown that in quite a large number of cases judges
became xmfit for work even before they were sixty and in the last year or
two of their work they were more a handicap to the administration of justice
than otherwise. He pointed out that avenues were open to brilliant judges
who were mentally and physically fit. They would have the opportunity
to be appointed to the Supreme Court; and they could be invited to
adm ini ster justice as ad hoc judges'. This view was eventually accepted
by the Assembly and Krishnamachari’s amendment adopted'.

The procedure approved by the Constituent Assembly and included in
the Draft Constitution for the removal of High Court judges was, as in
the case of judges of the Supreme Court, that this could only be done by
an order of the President on an address by each House of Parliament in
the same session. A suggestion was made by H. V. Kamath that the
President’s order should be based on an address presented by the State
Legislature and not Parliament’. This proposal met with considerable
opposition and was not adopted by the Assembly.

Another matter which evoked divergent comment was the right of retired

‘Comnients and Suggestions on the Draft Constitution, Select Documents IV,
l(i), p. 198.

Hbid; pp. 204-5.

^Select Documents IV, l(iii), p. 41i.

*C. X Dei., Vol. VIII, p. 662.

’■Ibid., pp. 670-1.

®See article 217 of the Constitution. \ ,

’C. .4. Dei., Vol. Vm, p. 663.

502

FRAMING OF INDIA’S CONSTITUTION

High Court judges to engage in practice at the Bar; the Act of 1935 did
not contain any provision in this matter; but the practice was uniform that
all persons appointed permanently to a High Court were required to give
an undertaking that after retirement they would not practise before any
court within the jurisdiction of that High Court. Persons appointed as acting
or additional judges were, however, free to engage in private practice*. The
Drafting Committee included an article imposing an absolute ban on practice
on every one who had held ofiBce as a judge of a High Court, and also on
every one who, having been recruited from the bar, was appointed as an
acting or additional judge® ; and this ban extended to pleading or acting in
any court or before any authority in India. This provision evoked adverse
comment. The memorandum sent by the judges made three points. In the
case of judges already in service and those who had retired before the
commencement of the Constitution, they were at the time of their appointment
free to practise in courts outside the jurisdiction of the High Court in which
they served; and if the ban on private practice was extended to them, it
would be a sudden deprivation of a right enjoyed by them. The
memorandum therefore recommended that no such “enlarged disability”
should be imposed on such judges. The second point was that “the
enforcement of the ban in the case of additional or temporary judges would
lead to the not very satisfactory result of preventing recruitment from the
Bar to these posts”. Finally, the judges expressed the opinion that the
scope of the “existing disability” should not be enlarged without a
compensatory increase in the scale of pension and a higher age-limit for
superannuation®. The Ministry of Home Affairs had only one comment :
it supported the view of the judges’ conference that the ban should not be
applied to additional and temporary judges*.

On the other hand, Tej Bahadur Sapru, the doyen of the legal profession
in India, was of the definite opinion that once a man had accepted a judicial
position, he should on no account revert to the Bar. He referred to the
English practice appreciatively: never to allow a man to go back to the
Bar once he had accepted a judicial appointment. He said :

I think the rule in future should be that any Barrister or Advocate, who
accepts a seat on the Bench, shall be prohibited from resuming practice
anywhere on retirement. . . I am also of the opinion that temporary or
acting judges do greater harm than permanent judges, when after their term
on the Bench for a short period they revert to the Bar. A seat on the
Bench gives them a pre-eminence over their colleagues and embarrasses
the subordinate judges who were at one time under their control and thus

'Comments and Suggestions on the Draft Constitution, Select Documents IV, I(i),
p. 205.

'‘Select Documents III, 6, article 196, p. 591.

‘Ibid., IV, l(i), pp. 197-9.

‘Ibid., ■p. 205.

THE JUDICIARY

503

instead of their helping justice they act as a hindrance to free justice. . .
It is however said that the true remedy lies in increasing the pension of
the judges and allowing the judges to secure some pension after short
periods of ofiSce. I agree that this would be a very good ground for not
permitting them to resume practice, but pension or no pension there is
a long standing convention in England to the effect that no member of
the Bar should do anything which gives rise to the impression that he has a
pull over his opponent by reason of having held a judicial post*.

In the light of these views the Drafting Committee introduced an amended
article (196) on June 7, 1949, which made the simple provision that the
ban on pleading or acting before any court or other authority in India would
apply to all persons who held the office of judge of a High Court after the
commencement of the Constitution”. An amendment abolishing the power
to make appointments of temporary or additional judges was also moved
and subsequently accepted.

This proposal met with some opposition from Hukam Singh who moved
an amendment proposing that the restriction on private practice should apply
only to practice within the jurisdiction of the court where a judge had served.
He was supported by H. V. Kamath and B. M. Gupte, the latter maintaining
that the cumulative effect of the reduction proposed in pay and pensions,
compulsory retirement at the age of sixty, and an absolute ban on practice
after retirement would be that the best men at the Bar would not be prepared
to accept judgeships and men of inferior calibre who had failed at the Bar
would be chosen. This would seriously affect the independence of the
judiciary. The Assembly, however, was not convinced; Hukam Singh’s
amendment was negatived and the article proposed by Ambedkar was
adopted as article 220 of the Constitution.

The question of the salaries and allowances and other conditions of service
of High Court judges also evoked much interest. Under the Government
of India Act, 1935, these were fixed by the British Government by an Order
in Council: and especially in the matter of pay and pensions, there was
variation among the different High Courts. In the Draft Constitution of
October 1947 (clause 165), these matters were to be regulated by Acts of
the appropriate Provincial Legislatures— with the proviso that the salary
of a judge could not be varied after his appointment. Until so fixed the
salaries, allowances and other conditions of service were to be set out in
a schedule in the Constitution. The Drafting Committee adopted this
proposal with the modification that a minimum salary was to be fixed both
for the Chief Justice and the judges”. This provision came in for adverse
comment. The memorandum embodying the views of judges of the Federal

'Comments and Suggestions on the Draft Constitution, Select Documents IV,
l(i),p. 173.

*C. /t. De6., Vol. VIII, p. 680.

’Draft Constitution, Feb. 1948, article 197, Select Documents HI, 6, p. 591.

504

FRAMING OF INDIA’S CONSTITUTION

Court and Chief Justices of the High Courts expressed the opinion that
the salaries and allowances of judges as well as their leave and pension
rights should be laid down in the Constitution itself and should not be
liable to legislative interference’. There was also a strong opinion held
by them that the conditions of service of judges already in service should
li not be affected adversely as a result of the new Constitution. The first

I reaction of the Drafting Com m ittee to these criticisms was one of opposition;

I j and B. N. Rau commented, first that there was no reason why the fixing of

; salaries should not be left to the State Legislatures, since the expenditure

; was to be met from State revenues; and secondly, that any judge holding office

I immediately before the commencement of the Constitution who elected to
continue as a judge thereafter should be treated as holding a new appointment
and entitled therefore only to the reduced salary prescribed by the
Constitution. This view was endorsed by the Drafting Committee. The

: Ministry of Home Affairs of the Government of India was, however, in favour

i of the salaries of all serving judges being safeguarded from reduction.

^ Eventually this view was accepted by the Drafting Committee and on August

j ( 1, 1949, Ambedkar moved an amendment which provided that salaries would

I I be fixed in the Constitution and that other allowances and leave and pension

I i rights would be determined by Parliament by law. The salaries of judges

J already in service were also protected. This amendment was adopted by

I the Assembly without any discussion”.

J On the provisions regarding the jurisdiction and powers of High Courts

there was some discu^ion; but generally there was a consensus of opinion
about the main principles. The main provision, adopted from the
Government of India Act was contained in article 201 of the Draft
Constitution of February, 1948. It laid down that the jurisdiction of, and
the law administered in, any existing High Court, and the respective powers
of judges in relation to the administration of justice in the court would be
the same as immediately before the commencement of the Constitution, with
a proviso already approved by the Constituent Assembly on the suggestion
of Alladi Krishnaswami Ayyar, that any restriction to which the exercise
of the original jurisdiction of any High Court with respect to revenue matters
was subject would no longer apply”. This provision was adopted without
any chaiige. In addition the relevant entries in the legislative lists also gave
power to the Union and State Legislatures to enact laws on the jurisdiction
and powers of High Courts and other courts on all matters on which they
were competent to legislate. The Draft Constitution also made the important
provision which conferred on High Courts the power to issue to any person
or authority directions, orders or writs, in the nature of habeas corpus,

'Select Doeumeitis IV, l(i), pp. 199-200,

=C. A. Deb., Vol. IX, p. 64, article 221 of the Constitution.

'Draft Constitution, Feb. 1948, article 202, Select Documents III, 6, p. 593 how
article 225 Of the Constitution.

THE JUDIOARY

505

mandamus, proMbition, quo warranto and certiorari for any purpose,
including directions, orders or writs for the enforcement of fundamental rights.
This was adopted with a few verbal changes'. i .

Other provisions relating to various powers of the High Courts and matters
concerning their jurisdiction were for the most part based- on the Government
of India Act of 1935 and the corresponding provisions relating to the Supreme
Court. Such discussion as there was on these did not raise any major question
of policy. Regarding the conditions of service of the staff, Ambedkar moved
an amendment on the lines already adopted for the Supreme Court, that any
rules made by a High Court regulating the salaries, allowances, leave and
pensions, should require the approval of the Governor. Hukam Singh
considered that it would be a serious infringement of the independence of
the courts to make their powers depend on the approval of the executive
and that in order to ensure that their conditions of service generally
corresponded to the conditions of service of other Government servants
performing similar duties, it would be sufficient if provision was made for
consultation instead of approval. The amendment was however not
accepted^.

At the revision stage the articles relating to High Courts were numbered
214 to 232, and the Drafting Committee added one more article (222) to
enable the President to transfer judges from one High Court to another.

NOTE ON amendments

Article 214 : Clauses (2) and (3) of this article were deleted by the
Constitution (Seventh Amendment) Act, 1956.

Article 216 : The Constitution (Seventh Amendment) Act, 1956 deleted
the proviso to article 216 which empowered the President to fix the maximum
number of judges for each High Court.

Article 217 : (1) Tire Constitution (Seventir Amendment) Act, 1956, which
reintroduced the system of acting and additional judges, also amended this
article by providing that the tenure of such judges would be as laid down
in article 224.

(2) The Constitution (Fifteenth Amendment) Act, 1963, raised the retiring
age of permanent High Court judges from sixty to sixty-two.

(3) The Act also added a new clause (3) which laid down that, if any
question arose as to the age of a High Court judge, it would be decided by
the President after consultation with the Chief Justice of India.

' Article 219 : A verbal change was made in this article by the Constitution
(Seventh Amendment) Act,: 1956, by the omission of the words “in a
State”.

^Draft Constitution, Feb. 1948, article 202. Select Documents III, 6, p. 593 now
article 226 of the Constitution.

Deb., ■ ■

506

FRAMING OF INDIA’S CONSTITUTION

Article 220 : This Act also radically amended article 220. The restrictions
on private practice by retired judges of High Courts now would not apply
to temporary and additional judges; nor would retired High Court judges
be debarred from practising before the Supreme Court or High Courts in
which they had not served.

Article 222 : Qause (2) of article 222, which provided for the payment of
a compensatory allowance to a judge transferred from one High Court to
another, was omitted by the Constitution (Seventh Amendment) Act, 1956,
but a somewhat similar provision was reintroduced by the Constitution
(Fifteenth Amendment) Act, 1963.

Articles 224 and 224-A : Article 224, as originally adopted by the
Constituent Assembly in 1949, enabled the Chief Justice of a High Court,
with the previous consent of the President, to request a retired judge of a
High Court to sit and act as a judge. This article was deleted by the
Constitution (Seventh Amendment) Act, 1956, which substituted a new
article enabling the President to appoint additional judges to deal with
temporary increases in work and acting judges to fill casual vacancies. The
tenure of additional judges was to be fixed by the President but was to be
subject to a maximum of two years.

The original article 224 was. however, reintroduced by the Constitution
(Fifteenth Amendment) Act, 1963, and numbered 224-A.

Article 226 : The Constitution (Fifteenth Amendment) Act, 1963, amended
this article by making it clear that a High Court could issue directions, orders
or writs to Governments, authorities and persons located outside its territorial
jurisdiction, so long as “the cause of action, wholly or in part” arose within
its jurisdiction.

Articles 230 and 231 : Since the effect of the Constitution (Seventh
Amendment) Act, 1956, was that every State would have a High Court of its
own, the question of extending the jurisdiction of a State High Court to
another State no longer arose. The Act amended articles 230 and 231
accordingly. New article 230 gave power to Parliament to extend the
jurisdiction of a High Court to a Union Territory, and new article 231
empowered Parliament to establish a common High Court for two or more
States or for two or more States and a Union Territory. Other consequential
amendments were also made.

THE SUBORDINATE COURTS

The organization of the judicial system in India at the time of the transfer
of power presented certain anomalies. Both the Indian Statutory (Simon)
Commission in 1930 and the Joint Select Committee on Indian Constitutional
Reform in 1934 had emphasized the paramount importance of an independent
and fair-minded judiciary enjoying the confidence of the people. Special
stress was laid on the need for a competent subordinate judiciary, because.

THE JUDICIARY

507

as the Joint Committee observed:

It is the subordinate judiciary in India who are brought most closely into
contact with the people, and it is no less important, perhaps indeed even
more important, that their independence should be placed beyond question
than in the case of the superior judges'.

Nevertheless, it may be doubted whether this intention was fully translated
into practice. Tlie district and sessions judges who exercised both civil
and criminal jurisdiction were appointed by the Governor of the Province,
exercising his individual judgment, and the High Court had to be consulted
on each such appointmenf. In the case of civil judges below the rank of
a district and sessions judge, it was provided that the Governor of each
Province should make rules, in consultation with the Public Service
Commission and the High Court, defining the standards of qualifications
required; and recruitment was to be made as a result of examinations held
by the Commission. Postings and promotions were in the hands of the
High Court. In this way freedom from executive control and interference
was ensured in regard to the civil judiciary.

The position was, however, somewhat different in the case of the magistracy
on the criminal side. District and subordinate magistrates were appointed
by the Provincial Governments under the provisions of the Code of Criminal
Procedure, there being no obligation to consult the High Courts. There
was, similarly, no obligation to consult the High Courts in the posting and
promotion of these oflicers or in investing any of them with special criminal
powers. It was a common practice for revenue officers to be invested with
powers to try criminal cases as well as to supervise the work of the lower
magistracy. Thus the district magistrate was also the collector and principal
district officer, and the chief revenue officer of the taluk normally exercised
the powers of a second class magistrate. As Ambedkar observed in the
Constituent Assembly, the magistracy was intimately connected with the
general system of administration*.

The Joint Select Committee observed in 1934 that in the case of magistrates
subordinate to a district magistrate, the High Court had “little knowledge
of their judicial work and none at all of the work which a large number of
them perform in their executive or administrative capacities”. The
committee, therefore, recommended that first appointments to these posts
should be made through the Public Service Commissions and that in the case
of promotions and postings, the recommendations of the district magistrate
should be obtained in consultation where necessary with the sessions judge
of the district in which the subordinate magistrate worked*. The provisions
actually included in the Act of 1935 required, however, that no

'^Joint Select Committee on Indian Constitutional Reform, Report (1934), para. 337.

^Government of India Act, 1935, s. 254.

’C. A. Deb., Vol. DC, p. 1571.

‘Report (1934), para. 341.

508

FRAMING OF INDIA’S CONSTITUTION

recommendation should be made for the grant of magisterial powers to, or
the withdrawal of such powers from, any person save after consultation with
the district magistrate.

In the earlier stages of constitution-making, no specific attention was paid
to the subordinate judiciary and neither the Draft Constitution prepared by
the Constitutional Adviser in 1947 nor that prepared by the Drafting
Committee in 1948 contained any specific provision on the subject. The
intention at this time was that detailed provisions with regard to the
recruitment and conditions of service of persons in the Defence Services or
serving the Union or a State in a civil capacity should not be included in
the Constitution but should be regulated by Acts of the appropriate
Legislature. The omission to provide specifically for the subordinate
judiciary in the Constitution was prominently mentioned by the Conference
Of the Judges of the Federal Court and the Chief Justices of High Courts
held in March 1948. Their memorandum observed :

So long as the subordinate judiciary, including the district judges, have
to depend on the provincial executive for their appointment, posting,
promotion and leave, they cannot remain entirely free from the influence
of members of the party in power and cannot be expected to act
impartially and independently in the discharge of their duties. It is
therefore recommended that provision be made placing exclusively in the
hands of the High Courts the power of appointment and dismissal, posting,
promotion and grant of leave in respect of the entire subordinate judiciary
including the district judges’.

The Drafting Committee accepted these recommendations. It considered
that the time was appropriate for assimilating the two branches of justice,
both civil and criminal, and placing them equally under the control of the
High Court. Accordingly, under its directions new provisions were drafted,
the principal feature of which was that all appointments of district judges
would be made by the Governor in consultation with the Chief Justice of
the High Court. In order to be qualified for appointment as a district judge
a person who was not already in the service of the Union or ofi a State
had to be an advocate or pleader of five years’ standing and had to be
recommended by the High Court for such appointment. So far as the
subordinate judiciary was concerned, the Governor was required to make
rules defining the standard of qualifications after consultation with the High
Court and the Public Service Commission, and examinations for recruitment
were to be held by the latter body. These provisions were to be applicable
to all judicial posts, both civil and criminal. Control over district courts
and courts subordinate thereto, including postings, promotions and the grant
of leave to district judges and all persons belonging to the subordinate
judicial service, was to vest in the High Court. ,

^Select Documents IV, l(i), p. 186.

THE njDICIARY

509

Rccognmng the existing legal position whereby under the Code of Criminal
Procedure the power of appointing magistrates and of investing them with
enhanced magisterial powers was vested in the Provincial Governments, the
Draft prepared at this stage also provided that no magisterial powers or
enhanced magisterial powers would be granted to, and no magisterial powers
withdrawn from, any officer or person, except with the previous approval
of the High Court. The committee also proposed an article (draft article
39-A) for inclusion among the directive principles, that the State should
take steps to secure, within a period of three years from the commencement
of the Constitution, complete separation of the judiciary from the executive
in the public services in the State'.

The Special Committee accepted these provisions with one modification,
that in order to be qualified for appointment as a district judge, a pleader
or advocate should have a standing of seven years. With this modification
the new draft articles were included among the recommendations for
amendment made by the Drafting Committee in October 1948'.

As already noticed, draft article 39-A, as amended by Ambedkar and
passed by the Assembly, merely directed the State to take steps to separate
the judiciary from the executive; the mention of the three year time-limit
was omitted'.

The provisions regarding the subordinate judiciary came up for discussion
nearly nine months later, on September 16, 1949. In moving the new articles
Ambedkar made some changes. The posting and promotion of district
judges which under the Draft were functions of the High Court were now
made the responsibility of the Governor in consultation with the High Court.
While in the draft articles as first proposed the High Courts were vested with
full powers of control over all subordinate courts, civil as well as criminal,
and aU powers in regard to the posting and promotion of all members of the
subordinate judiciary, irrespective of whether they exercised civil or criminal
jurisdiction, the amended articles confined this power of the High Courts
to the subordinate civil judiciary. So far as the magistrates exercising
criminal jurisdiction were concerned, a new article 209-E was added to
provide that the procedure laid down for the civil judiciary would apply
to these magistrates only if the Governor by public notification so directed,
and that too subject to such exceptions and modifications as he might specify.
Ambedkar defended this change in the Drafting Committee’s attitude:

The Drafting Committee would have been very happy if it was in a
position to recommend to the House that immediately on the commencement
of the Constitution, provisions with regard to the appointment and
control of the civil judiciary by the High Court were also made applicable
to the magistracy. But it has been realized, and it must be realized that

^Select Documents IV, l(i), p. 187.

Hbid., pp. 186-90.

‘See Chapter on Directive Principles of the State Policy.

510

FRAMING OF INDIA’S CONSTITUTION

the magistracy is intimately connected with the general system of
administration. We hope that the proposals which are now being

. entertained by some of the Provinces to separate the judiciary from the
executive will be accepted by the other Provinces so that the provisions
of article 209-E would be made applicable to the magistrates in the same
way as we propose to make them applicable to the civil judiciary. But
some time must be permitted to elapse for the effectuation of the
proposals for the separation of the judiciary and the executive. It has
been felt that the best thing is to leave this matter to the Governor to
do by public notification as soon as the appropriate changes for the
separation of the judiciary and the executive are carried through in any of the
Provincesh

Three major amendments were moved to these articles. Kuladhar Chaliha
from Assam wanted that only those persons should be promoted as district
judges in a State who were enrolled as pleaders in that State. This* he said
was necessary so that they might be acquainted with local customs. Hriday
Nath Kunzru moved an amendment vesting in the High Courts (instead of
in the executive) powers of posting and promotion of district judges. The
third proposal was from Thakurdas Bhargava who wanted a specific directive
that, not later than ten years from the commencement of the Constitution,
the magistracy exercising criminal jurisdiction should be brought under the
exclusive control of the High Courts, and should no longer remain under
the executive Government. In fact, the amendment tabled by him enabled
the Legislature of a Province to direct this change within three years in the
case of Part I States and seven years in Part III States.

Ambedkar however did not accept any of these amendments. Replying
to Chaliha, he said that it would be wrong to introduce any kind of
provincialism by law; and further that the adoption of the amendment
proposed by Chaliha might create difficulties for the Province itself because
it might not be possible to find a pleader who would be suitable for the
appointment.

These amendments were also negatived by the Assembly and the articles
as proposed by Ambedkar were adopted; these have become articles 233 to
237 of the Constitution.

C. A. Deb., Vol IX, p. 157L

THE INDIAN STATES

Commenting in 1930 on the Indian States the Simon Commission had
observed:

No account of the conditions of the Indian problem could be adequate
which did not include some description of the Indian States. They constitute
an outstanding feature which is without precedent or analogy elsewhere.
Some of them are countries comparable in size and importance to a
British Province; others are much smaller; and at the far end of the
scale we find Estates of a few acres owned or shared by petty chieftains
and others who exercise no jurisdictional powers".

Numbering in all over 550 they comprised a total area of about 600,000
square miles scattered all over India. The Indian States Committee (the
Butler Committee) appointed in 1927 had classified the States in the following
categories'* :

Class of State i Estate, etc. Number Area in square miles

1. States the Rulers of which were members
of the Chamber of Princes in their own

right ....... 108 514,886

2. States the Rulers of which were repre-
sented in the Chamber of Princes by
twelve members of their order elected by

themselves ...... 127 76,846

3. Estates, Jagirs and others . . . 327 6,406

The standards of the internal administration of the States also varied
considerably. Several had legislative bodies; some had advanced systems
of the judiciary, including High Courts ; and the rest of them could claim
vaiying degrees of administrative ejBdciency.

The constitutional position of the Indian States was a very peculiar one
built up through the operation of paramountcy and political practiced The

'^Report of the Indian Statutory (Simon) Commission (1930), Vol. I, para. 101.
^Ibid., para. 102. The Chamber of Princes was a deliberative organization
established in 1921, The important States were recognized as being members in
their own right Some of the less important States elected twelve representative
members; and the Estates and Jagirs did not enjoy any representation.

^For a MI description of the constitutional position of Indian States see William
Lee-Wamer, Native States of India, 2nd ed. The book is an old one but contains
MI discussions on the various aspects of the constitutional position of the Indian
'States.-/'

512

FRAMING OF INDIA’S CONSTITUTION

essential feature of the constitutional arrangement was that the territories
of Indian States were not part of “His Majesty’s Dominions” as British India
was, though the States were part of India as defined in various Parliamentary
enactments. Each State had a Ruler recognized as its head and the Ruler
was the authority to make and administer laws and conduct the government
of his State. Even in the case of those States which had written constitutions,
such constitutions provided that all powers, legislative, executive and judicial,
were, and had always been, inherent in and possessed and retained by the
Ruler.

Another feature of the Indian States was that the British Government
exercised powers of paramountcy over all the States, big and small alike.
These powers of paramountcy were based mainly on treaties, engagements,
sanads and supplemental usage and the decisions of the Government of
India and the British Government. The British Government made it clear
that the sovereignty of the British Crown was supreme in India and that
this supremacy was based not only upon treaties and engagements but existed
independently of them, and quite apart from its prerogative in matters
relating to foreign powers and policies, it was the right and duty of the
British Government, while scrupulously respecting all treaties and engagements
with the Indian States, to preserve peace and good order throughout
India’.

The Indian States had no status in the international field and the exclusive
power to conduct their foreign relations vested in the British Government.
The British Government guaranteed to the Rulers safety from external attack
as well as internal revolt. On the other hand, the operation of paramoimtcy
meant that Rulers of Indian States had at all times to be loyal to the British
Crown: that the recognition of any person as the Ruler of a State was
within the exclusive discretion of the paramount power; and that where the
interests of the paramount power were involved or the general weKare of
the people of a State was serioudy affected as a result of the action of a
Ruler, the paramount power had the discretion and authority to interfere.
Subject to these conditions; the Rulers were generally left with all powers
and authorily within the State.

In theory the territories of States were, as stated above, not part of British
territory, and neither Parliament nor the Legislatures in British India either
claimed or exercised at any time direct legislative jurisdiction over Indian
States. This however did not prevent the British Government from exercising
direct administrative powers over large areas of State territory when
expediency required it. The exercise of administrative jurisdiction in the
States is an interesting aspect of paramountcy which requires special mention.
Exercising unquestioned powers of sovereignty over the Indian States, the

Lord Reading’s letter to the Nizam of Hyderabad, March 27, 1926, reproduced
in White Paper on Indian States, p. 149.

THE INDUN STATES

513

British Government acting through the Government of India did not hesitate,
when their own interests were affected, to make arrangements with the Rulers
for the surrender of jurisdiction over areas in States — and sometimes over
the whole territory of certain States. The source of authority for the exercise
of such jurisdiction was officially described as “treaty, grant, usage, sufferance
and other lawful means”. The authority was the Foreign Jurisdiction Order
in Council of 1902 which expressly authorized the Governor-General in
Council to exercise on behalf of the Crown such powers and jurisdiction as
he thought fit. The exercise of such authority, though it covered legislative,
administrative and judicial spheres, was all done by executive act‘.

These powers were used for the exercise of jurisdiction which fell into
two broad categories. In the first category came the exercise of civil and
military jurisdiction over cantonments, railway lines, canal areas, civil
stations, residenq? areas and so on. The exercise of jurisdiction in these
areas ordinarily arose out of treaties or agreements between the British
Government and the Ruler of a State and was necessitated in the interests
of the good government of India as a whole. To take an example, the
overall requirements of Indian defence necessitated the establishment of
cantonments in State territories and jurisdiction had therefore to be given
to the British Government over such areas. Similarly, since the territories
of the States were spread out over the whole of the sub-continent, the main
lines of railway communication passed through the Indian States and it was
necessary to apply British Indian laws uniformly in these areas. For fiiis
purpose the States had to surrender jmisdiction over railway lands to the
British Government. For similar reasons, jurisdiction was surrendered in
the other categories of the areas mentioned.

The other category of cases wha-e the British exercised jurisdiction in
Indian States was in relation to the internal administration of some of th«»e
States. In Gujarat and Kathiawar certain historical events led to a situation
in which a large number of petty States and estates, though recognized as
Indian State territory, were too fragmented to enable their Rulers to exercise
governmental powers effectively. In some of these estates and talukas the
Rulers were left with very limited jurisdictional powers; and in others they
were wholly taken over by the Political Agent. When powers were thus
taken over they were exercised by the Political Agent unda: the supervision
of the higher authorities; he could and did also delegate these powers to
appropriate officers imder him. The position has been summarized as
foUows :

.. .their holdings are treated as beyond the jurisdiction of British India.
But their jurisdictory powers vest for them, and by their tacit assent,
in the political officers of Government. The thanadars Q.e. the officers
who exercise magisterial powers and judicial powers in these areas) and

Albert, Government of India, p. 41S.

■34

514

FRAMING OF INDIA’S CONSTITUTION

the British agent who supervises them are subject to the executive orders
of the British Government, but not to the jurisdiction of courts of law
established in British India’.

Apart from the exercise of direct administrative powers in Indian States,
briefly described above, there grew up over the years between the States
and the British Indian Government a relationship based on various agreements
and other arrangements on matters of common concern. As already noticed,
the Indian railway system covered the whole of India including the States.
So did the postal and telegraph system of the Government of India. British
Indian currency and coinage were accepted as legal tender throughout India
including the States. There were a number of agreements on various matters
between British India and the States relating to roads, railways, canals,
harbours, irrigation and a host of other matters. The co-ordination of
all-India policies was admittedly imperfect. Several States had power to
levy their own customs duties: some had their own coinage: a few again
ran their own postal systems. With all these imperfections, there were in
operation arrangements for a considerable measure of concerted action in
matters of all-India importance in the administrative and economic
fields.

The agency for the exercise of functions in relation to Indian States was,
before the coming into operation of the Government of India Act of 1935,
the Governor-General in Council. In terms of British Parliamentary statutes
relating to the government of India, the superintendence of the civil and
military government of India was vested in the Governor-General in Council,
subject only to his paying due obedience to the orders of the Secretary of
State. Treaties with Indian States were almost invariably made in the name
of the Governor-General in CouncU. Each treaty was headed by its title
and subject. The names of the contracting parties were recited and the fact
was plainly stated that the British officer who executed the treaty or
agreement did so on behalf of the Governor-General in Council or of the
British Government.

At the time of the appointment of the Simon Commission in 1927 to
consider the question of reforms in India, the British Government also
decided to re-examine the position of the Indian States. For this purpose
they appointed an Indian States Enquiry Committee presided over by
Harcourt Butler. The principal contentions put forward before the Butler
Committee on behalf of the Indian States were, first, that the scope of the
paramount power’s interference in the affairs of the Indian States should be
delimited and defined; and second, that it should be clearly laid down that
the relationship between the paramount Power and the Indian States was
of such a nature that the powers of paramountcy could not be handed over
to a third party but were necessarily to be exercised by the Crown through

William Lee-Wamer, The Native States of India, 2nd ed., p. 37.

THE INDIAN STATES

515

its .own agents.. It was claimed on behalf of the States that if a new.:
Government should be co:nstituted in British India with the powers and
authority of a Dominion, the relationship between the States and the Crown,
should not be transferred :to that Government,

Neither the Indian States Enquiry Cormnittee nor the Government of
India was able to accept the contention of die Rulers .that the exercise of
paramountey should be codified. TTie committee said: ■

Paramountcy must remain paramount ; it must fulfil its obligations, , defining
or adapting itself according to the shifting necessities of the time and the
progressive development of the States.

The committee, however, agreed with the contention put forward by the
Rulers that any transfer of the Crown’s rights and obligations in relation
to the States to any person or authority not acting under the direct authority
of the Crown in Great Britain should be conditional on the agreement of
the States.

The States demand that without their own agreement the rights and
obligations of the paramount power should not be assigned to persons
who are not under its control, for instance an Indian Government in
British India responsible to an Indian Legislature. If any Government
in the nature of a Dominion Government should be constituted in British
India, such a Government would clearly be a new Government resting on a
new and written constitution. The contingency has not arisen. . , We fee!
bound however to draw attention to the really grave apprehension of the
Princes on this score and to record our strong opinion that in view of the
fact of the historical nature of the relationship between the paramount
power and the Princes, the latter should not be transferred without their
own agreement to a relationship with a new Government In British India
responsible to an Indian Legislatureh

The Joint Select Committee, which considered and made proposals as
to the Constitution for India, later enacted as the Government of India Act
of 1935, recommended in 1934 that the rights, authority and jurisdiction in
relation to matters affecting Indian States should be taken away from the
Central Government in India and vested in a separate authority fonctioning
directly under the British Governments
In pursuance of this recommendation, the Government of India Act of
1935 created a new functionary called the Crown Representative to deal
with matters relating to the Indian States. This office was separate and
distinct from that of the Governor-General; but for practical and
administrative reasons it was considered that both these offices should be
held by the same person. After April 1, 1937, the two offices of Governor-
General and Crown Representative were held by the same person, on whom

^White Paper on Indian States, pp‘ 16 ^nd 13,

^ Joint Select Committee on Indian Constitutional Reform ; Report (1934), paras.
157 - 8 .'',

516

FRAMING OP INDIA’S CONSTITUTION

was conferred ths style and title of Viceroy*. There was also a provision
in the Act to enable the Crown Representative to utilize the Government
of India or the Provincial Governments as agents for the discharge of his
duties. But with a few exceptions, practically the entire range of the Crown
Representative’s functions, including powers of foreign jurisdiction, were, in
fact, discharged through his own agency, namely, the Political Department
and its officers.

The first serious recognition of the Indian claim to self-government was
officially given in 1917 when the British Government made the declaration
that its policy would be that of

the increasing association of Indians in every branch of the administration

and the gradual development of self-governing institutions with a view to

the progressive realization of responsible government

The authors of the Montagu-Chelmsford Report (Edwin Montagu, the
Secretary of State, and Chelmsford, the Viceroy) who were commissioned
with the task of giving practical shape to the implementation of this
declaration, saw clearly, even if as a distant ideal, that a federal association
between “British” India and Indian States was the ultimate solution. The
Simon Commission also visualized a federation as the final solution of the
Indian constitutional problem. What then appeared to be a distant vision
became an immediate objective as a result of the Round Table Conferences
of 1930-32. The Government of India Act of 1935 laid down a scheme of
federation as the basis for the evolution of all-India policies common to
British India and the Indian States. It was however a half-hearted attempt.
While the Provinces of India automatically became integral parts of the
contemplated federation, the extent of powers to be exercised by the federal
authorities in Indian States was to be governed by the voluntary accession
of the Rulers. It was left to the Rulers to decide whether and, if so, on
what subjects they would accede to the Federation. They were also given
the freedom to prescribe in their Instruments of Accession the limitations
and restrictions to which their accession would be subject. The position in
regard to the negotiations for the accession of States to the Federation was
further complicated by the fact that even though functioning as an
authoritarian government under the control of the Secretary of State and
the British Crown, the Government of India itself was m no position to
initiate or discuss these problems direct with the States. These discussions
were carried on through the channel of the Political Department of the Crown
Representative. A series of discussions took place between the Political
Department, the Government of India and the States during the three years
1936 to 1939 ; but it was only to be expected that with their personal powers
and dynastic positions safely guaranteed under the protection of the Crown

^Letters Patent issued to the Governor-General, 1937. Since 1858 the holder of
the office of Governor-General of India had the title “Viceroy and Governor-General”.
See N. Rajagopala Aiyangar, The Government of India Act, 1935, p. iv.

THE INDIAN STATES

517

Representative, the Rulers sought to exact conditions from the Government
of India which made the content of their accession almost illusory. By 1939 a
situation had been reached in which the prospects of any real or substantial
accession to the Federation had receded into the background. At this stage
World War II supervened and implementation of the federal scheme was
postponed.

The federal scheme which was embodied in the Government of India
Act of 1935 had, meanwhile, been rejected by the major political parties
in India, and when the scheme was abandoned on account of the World War
in 1939 there was little doubt about its extinction. All that the reform s of
1935 came to, therefore, so far as it affected the Centre, was that there was
created a cleavage in the central administrative structure by the fact that
the powers of the Central Government in India were now confined only to
British India and all functions in relation to the Indian States were taken
out of the jurisdiction of the Central Government and entrusted to a separate
agency, namely the Political Department.

The next stage of constitutional discussions in India was the political
mission undertaken by Stafford Cripps in 1942. The long-term plan presented
by Cripps was that immediately on the cessation of hostilities a constitution-
making body should be set up to frame the constitution of a new Indian
Union which would have the full status of a Dominion with power to
secede, if it so chose, from the British Commonwealth. The British
Government would undertake to accept and implement the new constitution
framed by this body subject to two conditions. First, any Province which
was not prepared to accept the new constitution would be entitled to frame,
by a similar process, a constitution of its own, and on it would be conferred
the same status as that of the Indian Union. The second condition was
that a treaty should be concluded between the British Government and the
constitution-making body to cover all matters arising out of the transfer
of responsibility, particularly the protection of racial and religious
minorities.

So far as the Indian States were concerned, they were free to decide
whether or not to accept the new Constitution. They could appoint
representatives to the constitution-making body in the same proportion to
their total population as in the case of representatives of British India
as a whole and these members would have the same status as the
representatives of British India. The Cripps Mission also stated that whether
or. not an individual State elected to adhere to the Constitution, it would be
necessary to initiate a revision of its treaty arrangements so far as this
mi^t be required in the new situation. But Cripps made it clear that in
the case of the non-adhering States the Crown would continue to retain
its obligations towards them and would enforce them through the usual
sanctions. The British Government would provide for everything necessary
to implement its treaty obligations to those States which did not join the

518

FRAMING OF INDIA’S CONSTITUTION

Union and this would include the use of force in the last resorf .

The Cripps Mission failed and nothing came out of these proposals. When,
therefore, the Cabinet Mission came to India in 1946 it had to break fresh
ground. The proposal of the Cabinet Mission was that there should be
a Union of India embracing British India and the Indian States to deal
with foreign affairs, defence and communications, and that the Union should
have the powers necessary to raise the finances required for these subjects^.
But while the Cabinet Mission laid down in detail the procedure for the
setting up of the constitution-making machinery for British India, the
statement was vague about the Indian States, both regarding the extent of
authority to be exercised by the Union and about the manner of participation
of the States in the process of constitution making. The statement merely
said that so far as the Indian States were concerned, they would retain all
subjects and powers not ceded to the Union.

The statement made it clear that, with the attainment of independence by
British India, whether inside or outside the Commonwealth, paramountcy
over the Indian States could neither be retained by the British Crown nor
transferred to the new Government. The implication of this was further
explained in a memorandum on States’ treaties and paramountcy presented
by the Cabinet Mission to the Chancellor of the Chamber of Princes on May
12, 1946 (and published on May 22)’. In this memorandum it was laid
down as the policy of the British Government that, since they could not, with
the attainment of independence by British India, carry out the obligations
of paramountcy and could not contemplate the retention of British troops
in India for the purpose, all rights surrendered by the States to tire
paramount power would return to the States— in other words, the States,
big and small, would each become an independent entity. The memorandum
further added that all political arrangements between the States on the one
side and British India on the other would be brought to an end : the void
would have to be filled either by the States entering into a federal relationship
with the successor Government in British India, or, failing this, into particular
arrangements with it.

Under the procedure laid down in the Cabinet Mission’s statement some
considerable time was bound to elapse before the new Constitution of India
was ready and this interim period was to be utilized for the necessary
negotiations between British India and Indian States “in regard to the
future regulation of matters of common concern, particularly in the economic
and political field”.

The Cabinet Mission also referred to the representation of Indian States

'Select Documents I, 36(ii), p. 128. Also see Indian Annual Register, (.Jun-Jime,
1942), Vol. I, p. 255.

’Statement of the Cabinet Mission and the Viceroy, Select Documents I, 48(i),
p. 213.

^Select D(rcuments I, 49, pp. 246-8.

THE INDIAN STATES

519

in the Constituent Assembly. Membership “in the final Constituent
Assembly” not exceeding ninety-three (on the basis of one seat for a million
of the population) was provided. The method of selection of these ninety-
three representatives was not clearly indicated but it was left to be determined
by consultation. In the plan as envisaged by the Cabinet Mission, it was
intended that at the preliminary meeting of the Constituent Assembly the
general order of business would be decided, a chairman and other members
elected and an advisory committee set up on the rights of citizens, minorities,
and tribal and excluded areas. The statement did not say whether and if
so how the representatives of the Indian States would take part in the
discussion on these matters. It merely said that the representatives of the
Indian States should “reassemble” along with the representatives of the
Sections for the purpose of settling the Union Constitution. Apart from
a general statement that the States would in the preliminary stages be
represented by a negotiating committee, nothing was said about the
participation of States’ representatives as members in the Constituent
Assembly in the deliberations of the advisory committee.

The Standing Committee of the Chamber of Princes considered the
adjustments to be made in the light of the Cabinet Mission’s statement. There
were three important matters on which attention was focussed by it, namely,
questions relating to the exercise of paramountcy in the interim period; the
conclusion of administrative arrangements with British India on matters of
mutual interest; and participation by Indian States in the Constituent
Assembly.

The committee endorsed the suggestion of the Cabinet Mission that the
States should

strengthen their position by doing everything possible to ensure that their
administrations conform to the highest standard. Where adequate
standards cannot be achieved within the existing resources of the State,
they will no doubt arrange in suitable cases to form or join administrative
units large enough to enable them to be fitted into the constitutional
structure. It will also strengthen the position of the States during this
formulative period if the various Governments which have not already
done so take active steps to place themselves in close and constant touch
with public opinion in their States by means of representative institutions’.

The Standing Committee suggested that a special committee should be
set up consisting of representatives of States and the Central Government
to discuss matters of common concern. It also set up a negotiating committee
to negotiate with the corresponding committee of the Constituent Assembly
various issues relating to the participation of Indian States in the Assembly.
This committee consisted of the Nawab of Bhopal, the Maharajas of Patiala

’See letter from the Nawab of Bhopal, Chancellor of the Chamber of Princes, to
the Viceroy, June 19, 1946. Select Documents 1, 55(i), pp. 270-1,

520

FRAMING OF INDIA’S CONSTITUTION

and Nawanagar, C. P. Ramaswami Aiyar (Travancore), Sultan Ahmad
(Chamber of Princes). Mirza Ismail (Hyderabad), D. K. Sen (Patiala),
A. Rmnaswami Mudaliar (Mysore), K. M. Panikkar (Bikaner) and Maharaj
Virbhadra Singhji*. The decision on the question ■whether the States should
or should not join the Constituent Assembly, said the Chancellor, would be
taken by a general conference of Rulers and representatives of States and
it would depend on these negotiations’.

The first meeting of the Constituent Assembly was held on December 9,
1946, and one of its first objects was to bring about the association of
representatives of Indian States with the task of constitution-making in the
Assembly as its members.

The Indian National Congress was in the past well known for its sympathy
with the Indian States Peoples’ Conference, a body which sought to establish
popular governments in the States. Jawaharlal Nehru himself was closely
associated with this movement The Rulers of States, who for the most
part claimed full and exclusive persmial powers, were naturally not in
sympathy ■with this movement The start of the proceedings in the
Constituent Assembly was not particularly propitious for cooperation between
the Assembly and the Rulers. Moving the Objectives Resolution on
December 13. 1946, in the Constituent Assembly (in which neither the Indian
States nor the Muslim League were at that time represented)' Nehru explained
that the resolution did not concern itself with what form of government
the States had or “whether the Rajas and Nawabs will continue or not”.
He also emphasized that if a part of the Indian Republic desired to have
its own administration it was welcome to have it. But at the same time
he made it clear that the fiuaal decision in the matter whether or not there
should be a monarchical form of government in the States was one for
decision by the people of the States :

There is no incongruity or impossibility about a certain definite form of
administration in the States provided there is complete freedom and
responsible government there and the people really are in charge. If
monarchical figureheads are approved by the people of the State, of a
particular State, whether I like it or not, I certainly will not like to interfere®.

Nehru had earlier stated in the same speech that the Congress view in
regard to the Indian States had for many years been that the people of
those States must share completely the freedom to govern and that it was
quite inconceivable that there should be different standards and degrees of
freedom as between the people in the States and those outside them. N.
Gopalaswami Ayyangar expressed the same opinion more forcibly when he
stated that Rulers of States had so far both claimed and exercised full
internal sovereignty m their States, subject only to the politically inescapable

^Select Documents I, 90(iii), p. 596.

’‘Ibid., I, 55(i), p. 269.

X Dei., Vol. I, p. 61.

THE INDIAN STATES

521

limits set by the paramountcy of the British Crown ; that they had claimed
to exercise both ordinary legislative powers and constituent powers; and
that such constitutional powers which the people of certain States exercised
through their representatives had been a matter of gift from the Rulers to
them*. Hie Objectives Resolution put the Indian States according to
Gopalaswami Ayyangar on the same level as the Provinces in regard to
subjects not ceded by them to the Union Centre ; that is to say, all power
and authority of the Indian States as constituent parts of the sovereign
independent Republic of India would be derived from the people of the
States. He added :

With a view to emphasizing the unlimited nature of the sovereign powers
claimed by the Rulers, such constitutions (the existing vrritten constitutions
of individual States) contain also another provision which enacts that,
notwithstanding anything contained in the Constitution Act or in any
other Act, all powers, legislative, executive and judicial, are, and have
always been, inherent and possessed and retained by the Ruler and that
nothing contained in any such Act shall affect or be deemed to affect the
right and prerogative of the Ruler to make laws and issue proclamations,
orders a,nd ordinances by virtue of his inherent authority. Such provisions
in States’ constitutions are remnants of an all-pervasive autocracy and
deserve to be swept away and replaced by a provision which declares
that all powers of government, legislative, executive and judicial, should
be deemed to be derived from the people and exercised by such organs
of State, including the hereditary Ruler, as may be designated in the
written constitution and to the extent authorized by that constitution”.

On December 21, 1946, the Constituent Assembly adopted a resolution
moved by K. M. Munshi setting up a committee to confer with the
Negotiating Committee of the Chamber of Princes, and with other
representatives of the Indian States, for determining the distribution of seats
in the Assembly, not exceeding ninetythree, which, in the Cabinet Mission’s
statement, were reserved for Indian States, and for deciding the method by
which such representatives should be returned to the Assembly. The
committee consisted of Abul Kalam Azad, Jawaharlal Nehru, Vallabhbhai
Patel, Pattabhi Sitaramayya, Shankarrao Deo and N. Gopalaswami Ayyangar.
The resolution also provided for the addition subsequently of not more than
three members; they were to be elected by the Constituent Assembly in such
manner as the President might direct. The committee, by the terms of the
resolution, was to report the result of its negotiations to the Constituent
Assembly”.

In the meantime, the Rulers had also been giving further consideration to
this matter of negotiation with the Constituent Assembly. A meeting of

522

FRAMING OF INDIA’S CONSTITUTION

Rulers and representatives of Indian States* was held in Bombay on January
29 , 1947. It passed a lengthy resolution stating that the entry of the States
into the Union of India in accordance with the accepted plan should be on
no other basis than that of negotiation and that the final decision would
rest with each State. The proposed Union of India would comprise, so far
as the States were concerned, the territories of only such States or groups
of States as might decide to join the Union. It was understood that their
participation in the constitutional discussions in the meantime would imply
no commitments in regard to their ultimate decision which could only be
taken after, consideration of the complete picture of the Constitution”.

The resolution emphasized that according to the Cabinet Mission’s
statement the States would retain all subjects and powers other than those
ceded by them to the Union ; that paramountcy would terminate and with it
all powers of control and supervision exercised by the paramount power;
and that there could be no question of any powers being vested or implied
in the Union in respect of the States unless there was a specific agreement
by them. The resolution also expressed the opposition of the States to any
interference with their constitutions, territorial integrity, internal
administration and the monarchical form of government. The claim was
made that the States’ Negotiating Committee was the only authoritative body
competent under the Cabinet Mission’s plan to conduct preliminary
negotiations on behalf of the States. The States’ Negotiating Committee was
authorized to confer with the corresponding body of the British India portion
of the Constituent Assembly in order to negotiate the terms of the States’
participation in the Constituent Assembly and in regard to their ultimate
position in an all-India Union. As a further safeguard it was provided that
the results of these negotiations would be subject to the approval of the
Constitutional Advisory Committee of the States and ratification by the
States.

In a note submitted to Nehru on February 8, 1947, B. N. Rau suggested
that the best way to deal with the States’ Negotiating Committee would be
not to deal in detail with the points raised in the resolution of January 29,
but to proceed on the basis that the powers of the committee set up by
the Assembly were limited to dealing with the two specific issues committed
1o it by the Assembly ; namely, the distribution of seats among the States and
the manner of choosing their representatives. Accordingly he favoured an
effort being made to reach an agreement on the distribution of the ninetythree
seats and on the method of filling them. The other matters could be treated
as open to discussion in the Constituent Assembly’.

The two committees met on February 8, 1947* Almost at once

^All these representatives were nominees of Rulers: none of them was elected.

^Select Documents I, 9I(iii), p. 605.

’/fo'd., I, 91(viii), p. 618.

‘Wd. I, 93, pp. 644-73.

THE INDIAN STATES

523

differences became manifest in the approach of the two committees to the
matters to be discussed. Jawaharlal Nehru, Vallabhbhai Patel and other
.members of the Constituent Assembly Committee stated tiiat under their
mandate the discussions were to be limited to the two points outlined in
the Assembly’s resolution of December 21. But the States Negotiating
Committee was not willing to accept this position. It claimed that it was
bound by 'the resolution adopted by the Rulers . on January '29 to get
clarification on all the matters raised in that resolution. C. P. Ramaswami
Aiyar made a particular reference to this point in urging that the precise
form which the cooperation of the States would take must necessarily involve
the presumption that all conditions precedent to such cooperation would
be settled. He claimed that “some of the basic factors of the situation
should be placed beyond the reach of disputation or controversy’’.
According to him the important issue was the settlement of the preliminary
arrangements, agreements or understandings which would enable the States
to come into the Constituent Assembly.

Nehru stated that if one followed this logic and the committees came to
agreement on major questions concerning the States, there would be no
purpose in the representatives of the States going to the Constituent Assembly.
He assured the States that the Constituent Assembly accepted the Cabinet
Mission’s statement of May 16, 1946^ in its entirety. The Cabinet Mission’s
scheme was essentially one which gave complete freedom of discussion to the
parties. All that he was asking the States to do was to come to the Assembly
and discuss their problems without being committed to anything in advance.
It is a voluntary structure. It is obvious, as things are, that any State or,
for the matter of that, any Province, if it chooses to walk out, really
walks out at any stage, in the beginning, middle or the end\

Vallabhbhai Patel also emphasized this point. But the Rulers and
representatives of the States would not agree to come in on these terms :
they were apprehensive of their position, especially after the speeches made
in connection with the Objectives Resolution. At one stage it looked as
though the points of view of the two committees would prove to be
irreconcilable. But at the meeting held on February 9 the Committee of
the Constituent Assembly adopted a more conciliatory attitude. Referring
to the various points raised in the resolution of the Rulers, Jawaharlal Nehru
went a long way to assuage the apprehensions expressed by the Rulers and
to give them the necessary assurances. He said that, so far as the
monarchical form of government was concerned, it had been repeatedly
stated, both in the Constituent Assembly as well as outside, that they had
no objection to it. Nehru conceded that any territorial readjustments should
be made with the consent of the parties concerned and not “be forced down”.

Understand;ing was reached on other points as well. With regard to

^Select Documents I, 93, p. 668.

524

FRAMING OF INDIA’S CONSTITimON

paramountcy, it was agreed that there would be none after the interim period ;
there would, on the other hand, be a Union of autonomous units of equal
status, each unit sharing the Union’s paramountcy. As regards the internal
autonomy of the States, Nehru made it clear that the autonomy of the units
was an essential part of the federal scheme, and that there would be no
interference with a State’s constitution, territorial integrity or succession
matters, except that certain fundamental rights would be part of the Union
Constitution and might, therefore, come under the jurisdiction of the Union.
Nehru and Patel also accepted the position that the States’ Negotiating
Committee represented a great majority of the States, though there were
some States not represented in it, and so far as these States were concerned,
the Constituent Assembly had the right to deal with them. These assurances
were acceptable to the Negotiating Committee of the Chamber of Princes
and they accordingly proceeded to consider the question of the 'distribution
of the ninetythree seats among the States and the method of representation
of the States.

The grouping of States where necessary and the allocation of seats among
them had meanwhile been worked out by the secretariats of the Constituent
Assembly and of the Chamber of Princes’. At a joint meeting of the two
committees on March 2, 1947, the recommendations of the secretariats were
generally accepted. It was also agreed that not less than half the number
of the total representatives of the States should be elected by the elected
members of the Legislatures or, where such Legislatures did not exist, of
other electoral colleges. In order to accommodate the strong feeling of the
Constituent Assembly’s Negotiating Committee (reflected in the Assembly)
it was agreed that as far as possible the representatives of the States should
be chosen by the people of the States : it was further agreed that the States
would endeavour to increase the quota of elected representatives to as much
above 50 per cent of the total number as possible*.

Some difference of opinion arose during these discussions as to the stage
at which the representatives of the States would join the Constituent
Assembly. The Cabinet Mission’s statement of May 16, 1946 was vague on
this point. They had said in one place that it was the intention that the
States would be given in the final Constituent Assembly appropriate
representation which would not exceed ninetythree seats; it was also stated
that the representatives of the “Sections” and flie Indian States would
“reassemble” for the purpose of settling the Union Constitution after the
Provincial Constitutions had been settled and a decision taken on the question
whether any group constitution should be set up and, if so, with what
provincial subjects the group should deal.

'Minutes of the meeting of the Joint Sub-Committee of the States Committee of
the Constituent Assembly and the Negotiating Committee of the Chamber of Princes,
March 1, 1947. 5’e/ect DocK/nentj 1, 94, pp. 722-5.

‘Select Documents I, 93, pp. 720-1.

THE INDIAN STATES

525:

The Chancellor expressed his opinion that the question of the States coming
into the Constituent Assembly at an earlier stage would be opposed to the
Cabinet Mission’s proposals, and would in any case require a specific decision
of the Conference of Rulers. Jawaharlal Nehru, on the other hand,
emphasized the necessity of the States’ representatives participating at once
in the deliberations of the Constituent Assembly. He pointed out that almost
immediately it would be necessary for the Constituent Assembly to set up
various committees and that particularly in the Union Powers Committee
and in the Fundamental Rights Committee, Indian States were deeply
interested. It would be very much to the advantage of the Indian States
to participate through their representatives in these committees right from
the beginning, as otherwise things would have to be considered afresh after
conclusions had been arrived at. The Maharaja of Patiala expressed his
own personal opinion that the State should, as suggested by Jawaharlal
Neiiru, participate from the beginning. But the Chancellor, the Nawab of
Bhopal, was of a different view: the result of all these discussions, he
thought, should be put to the Conference of Rulers and it was only when
a decision of the conference was taken that they would know as a body
where they were. But it would be open to any States which were anxious to
do so to go ahead with the election of their representatives’. The
communique issued as a result of this conference stated that these conclusions
would be placed before a general conference of Rulers and representatives
of States for ratification’.

The question of participation of States in the Constituent Assembly on the
basis of these discussions was placed at a meeting of the Committee of Rulers
and Ministers on March 30, 1947, At this meeting some of the Rulers,
especially Bikaner and Patiala, took a definite stand in favour of immediate
participation in the Constituent Assembly. In a statement circulated to
the Rulers, Bikaner argued that in the interests of the States as a whole,
interspersed as they were with territories in British India, it was beyond
question that by June 1948 a strong central government should be created
which could take over power (under the statement of February 20. 1947, the
British Government was committed to transfer power to Indian hands by June
1948); and the only safe policy for the States was to work fully with the
stabilizing elements in British India to create a Centre for at least as large
a section of India as possible to start with. He therefore expressed the
definite view that the States should fully cooperate with the Constituent
Assembly and not adopt a policy of wait-and-see. The Nawab of Bhopal,
on the other hand, expressed the view that the Rulers should first insist on
the Constituent Assembly accepting the fundamentals of the resolutions of
the Conference of Rulers passed in January 1947; and that the participation

'Select Documents l, 93, pp. 720-1. .

mid.

526

FRAMING OF INDIANS CONSTITUTION

by States’ representatives in the deliberations of the Constituent Assembly
could only be at the final phase, namely, at the time of framing the Union
Constitution*. The Committee of Rulers and Ministers adopted a resolution
permitting the representatives of any State which so desired to join the
Constituent Assembly at the appropriate stage when the Assembly mef .

It is worth mentioning that two of the States, Baroda and Cochin,
negotiated direct with the Constituent Assembly and not through the States
Negotiating Committee. On January 8, 1947, B. L. Mitter, the Dewan of
Baroda, wrote to the Secretary of the Constituent Assembly suggesting that
of the three seats to which the State was entitled, one would be filled by
nomination and two by election through an electoral college elected by all
the village panchayats and municipalities, covering the whole population
of the State. The Maharaja of Cochin sent a telegram on February 18,
deputing his Minister P. Govinda Menon personally to discuss the issue of
the State’s participation : the telegram contained a request that the State
should be given two representatives both to be elected by the elected
members of the State Legislative Council. It was not found possible to
increase Cochin’s representation; and eventually Baroda’s three representatives
as well as the Cochin representative were elected by the elected members of
the Legislatures of these States.

The Report of the Negotiating Committee was placed before the
Constituent Assembly on April 28, 1947, when the Assembly met after an
adjoummenf. On the same day the representatives of the States of Baroda,
Bikaner, Cochin, Jaipur, Jodhpur, Patiala, Rewa and Udaipur took their
seats in the Constituent Assembly. Thereafter representatives from other
States also started participating. From this stage onwards, the general
principles of participation having been settled, the selection of delegations
from individual States or groups of States was decided individually, and
members started coming in. The Chamber of Princes and its committees
gradually faded out of the picture.

The June 3 plan created an entirely new set of circumstances demanding
immediate action by the Government. According to that plan, paramountcy
was to lapse not when the new Constitution came into force, but by August
15, 1947. The plan itself made the somewhat laconic statement that the
decisions announced in it related only to British India and that the policy
of His Majesty’s Government towards the Indian States contained in the
Cabinet Mission’s memorandum of May 12, 1946 remained unchanged'*. But
obviously the lapse of paramountcy and with it the termination of aU political
and administrative arrangements with the States would have created far-
reaching consequences and the threat of an administrative chaos— a danger

^V. P. Menon, The Story of the Integration of the Indian States, 74 ff.

'‘■Select Documents I, 91(xvi), pp. 632-3.

K. A. Deb: Vol. Ill, pp. 350 fl.

* Select Documents I, 85(i), p. 525.

THE INDIAN STATES

527

wliicli called for immediate steps to be averted. This consideration was to
some extent given recognition by the British Government ; and in his speech
on July, 16 , introducing the Indian Independence Bill in the House of Lords,
the Secretary of State for India* Pethick-Lawrence, made the following
observation :

We are, therefore, proposing that, from the date when the new Dominions
are set up the treaties ■ and agreements which gave us suzerainty , over the
States will become void. From that moment the appointments and functions
of the Crown Representative and his officers will terminate and the States will
be the masters of their own fate. They will then be entirely free to choose
whether to associate with one or other of the Dominion Governments
or to stand alone and His Majesty’s Government will not use the slightest
pressure to influence their momentous and voluntary decision. But 1
think it can hardly be doubted that it would be in the best interests of
their own people and of India as a whole, that in the fullness of time
all the States should find their appropriate place within one or the other of
the new Dominions. It would be a tragedy for India if the States
were not to enrich the motherland to which they belong with the martial
valour for which they are renowned, and which they have displayed so
gallantly in two world wars, with the tradition of service that animates their
rule, and with the advanced social institutions that some of them possess. . .
But, apart from the political relationship between the States and British
India, there have grown up a vast number of economic and financial
agreements about matters of common concern — posts and telegraphs,
customs, transit, railways — and it would be disastrous to India if these
arrangements were suddenly terminated on the transfer of powerk
Hiese difficulties did not escape notice in India at the time. On June 11,
1947, the Standing Committee of the All-India States Peoples’ Conference
passed a lengthy resolution in which, among other things, they demanded
that the Political Department and its agencies should be handed over to the
new Government of India; or in the alternative, that a new Central
Department should be created immediately to discharge the functions of
the Political Departmenf. The Reforms Commissioner, V. P. Menon,
referring to the proposed provisions in the Indian Independence Bill, the
legislation to be placed before the British Parliament for the implementation
of the transfer of power under the June 3 plan, pointed out that there were
several important agreements entered into for the common benefit of the
States and British India, where paramountcy did not enter, such as the
agreement of 1920 with Bahawalpur and Bikaner regarding the Sutlej Valley
Canal Project and the Government of India’s agreement on salt with Jaipur
and Jodhpur. The mutual rights and obligations of parties under such

^Seieci Documents X Mil), pp. 534-5.

2V. P. Menon, The Story of the Integration of the Indian States, p. 85.

528

FRAMING OF INDIA’S' CONSTITUTION

agreemeats, he argued, could not be regarded as lapsing on the withdrawal
of paramountcy; on the commencement of the Government of India Act of
1935, the Crown’s rights and obligations had become, for all practical and
constitutional purposes, the rights and obligations of the Central Government
and were secured as such by the provisions of the Act. The financial
commitments of the Central Government under agreements of this type were
considerable. These agreements should therefore in his view continue to
be binding both on the States and on the successor Governments'. Again,
B. N. Rau, the Constitutional Adviser, regarded it as unthinkable that over
three hundred Rulers of petty States in Kathiawar and Gujarat, whose
average area was about 20 square miles, average population about 3,000 and
average annual revenue about 22,000 rupees and who had hitherto exercised
only petty jurisdictional powers {or no powers at all), should almost
overnight acquire powers of life and death. He suggested for inclusion a
proviso that the criminal, revenue and civil jurisdiction, hitherto exercised
by, or under, the authority of the Grown Representative in regard to these
small States should hereafter be exercisable by, or under the authority of,
the Dominion Government concerned. All this was communicated to the
Secretary of State but to no pu^se’. The British Government was
determined that any change in the position already adopted would be a
departure from the policy declared by it that all paramountcy functions would
lapse with independence. Accordingly clause 7 of the Indian Independence
Bill (subsequently passed by the British Parliament) would stand. This clause
ran as follows :

7. Consequences of the setting up of the new Dominions: (1) As from the
appointed day—

(a) His Majesty’s Government in the United Kingdom have no
responsibility as respects the government of any of the territories which,
immediately before that day, were included in British India ;

(b) the suzerainty of His Majesty over the Indian States lapses, and with
it, aU treaties and agreements in force at the date of the passing of this
Act between His Majesty and the Rulers of Indian States, all functions
exercisable by His Majesty at that date with respect to Indian States, all
obligations of His Majesty existing at that date towards Indian States or
the Rulers thereof, and all powers, rights, authority or jurisdiction
exercisable by His Majesty at that date in or in relation to Indian States
by treaty, grant, usage, sufferance or otherwise ; and

(c) there lapse also any treaties or agreements in force at the date of the
passing of this Act between His Majesty and any persons having authority
in the tribal areas, any obligations of His Majesty existing at that date
to any such persons or witli respect to the tribal areas, and all powers,
rights, authority or jurisdiction exercisable at that date by His Majesty

'V. P. Menon, The Story of the Integration of the Mian States, pp. 101-2.
mid., p. m.

THE INDIAN STATES

529

on or in relation to the tribal areas by treaty, grant, usage, sufferance
or otherwise :

Provided that, notwithstanding anything in paragraph (b) or paragraph (c)
of this sub-section, effect shall, as nearly as may be, continue to be given
to the provisions of any such agreement as is therein referred to which
relate to customs, transit and communications, posts and telegraphs, or
other like matters, until the provisions in question are denounced by the
Ruler of the Indian State or person having authority in the tribal areas
on the one hand, or by the Dominion or Province or other part thereof
concerned on the other hand, or are superseded by subsequent agreements,
(2) The assent of the Parliament of the United Kingdom is hereby given
to the omission from the Royal Style and Titles of the words *Tndiae
Iniperator” and the words “Emperor of India” and to the issue by His
Majesty for that purpose of His Royal Proclamation under the Great Seal
of the Reaim\

Under the arrangement proposed earlier in February, 1947, the new
Government would have had some time to negotiate new treaties and fresh
agreements with the Indian States, either in continuation or in replacement
of existing treaties and agreements which, as they were concluded under the
aegis of paramountcy, would lapse along with its extinction. As it was, the
Government of India was given about two months for this task. But the
issues at stake were complex and important and immediate negotiations
with Indian States became necessary. For this purpose a States Department
was created with Vallabhbhai Patel as the Minister in charge. This
department was able to negotiate and conclude Instruments of Accession with
all the States situated in the Indian Dominion (excepting Hyderabad) by
which fhey acceded to the Dominion of India on the subjects of defence,
external affairs and communications. These Instruments fell into two
categories. The accession of the full-powered States was signified in
Instruments which accepted the legislative and executive jurisdiction of the
Dominion of India in relation to all matters in the Union legislative list
pertaining to defence, external affairs and communications, other than items
relating to taxation®.

In the case of States where the Political Department, before the transfer
of power, had exercised direct administrative jurisdiction in States (this
jurisdiction extended in some of the petty estates and talukas to the exercise
of almost complete governmental powers) a separate Instrument of Accession
was devised which provided that

the Dominion of India may, through such agency or agencies and in
such manner as it thinks fit, exercise in relation to the administration of
civil and criminal justice in this State all such powers, authority and

^Select Documents I, 86(ii), pp. 542-3.

^White Paper on Indian States* p. 36, See also V, P. Menon, Story of th0
Integration of the Indian jS/uto, p. 109,

530

FRAMING OF INDIA’S CONSTITUTION

jurisdiction as were at any time exercisable by His Majesty’s Representative
for the exercise of the functions of the Crown in its relations with Indian
■ States.

of Accession established a new organic relationship
between the States and the Government of India; but they did not furnish
a full answer to the question of the continuance of various administrative
arrangements between the States and the new Dominion of India on matters
of common concern. For this purpose, all the States also signed Standstill
Agreements with the Government of India ; these were not subject to
termination at the will of either party but provided :

Until new agreements are made in this behalf all agreements and
administrative arrangements as to matters of common concern existing
between the Crown and any Indian State shall, in so far as may be
appropriate, continue as between the Dominion of India or, as the case
may be, the part thereof and the State.

It is also noteworthy that these agreements were not limited in scope (as
were the arrangements mentioned in section 7 of the Indian Independence
Act) but covered the entire range of matters on which agreements and
arrangements existed. The following items which were specifically mentioned
will indicate the wide scope covered by these Standstill Agreements : (1) air
communications, (2) arms and equipment, (3) control of commodities, (4)
currency and coinage, (5) customs, (6) Indian States Forces, (7) external
affairs, (8) extradition, (9) import and export control, (10) irrigation and
electric power, (11) motor vehicles, (12) national highways, (13) opium, (14)
posts, telegraphs and telephones, (15) railways (including police and other
arrangements in railway lands), (16) salt, (17) central excises, relief from
double income-tax and other arrangements relating to taxation, (18) wireless.

In order to safeguard the legitimate interests of the Indian States (as well
as of the new Dominion) these Standstill Agreements provided that all
disputes arising out of them should be referred to arbitration.

The position was well summed up by Mountbatten in his address on
August 15, 1947 :

The plan of June 3rd dealt almost exclusively with the problem of the
transfer of power in British India; and the only reference to the States
was a paragraph which recognized that on the transfer of power all the
Indian States— 565 of them— would become independent. Here then was
another gigantic problem and there was apprehension on all sides. But
after the formation of the States Department it was p^ossible for me as
Crown Representative to tackle this great question. Thanks to that far-
sighted statesman Sardar Vallabhbhai Patel, Member in charge of the
States Department, a scheme was produced which appeared to me to be
equally in the interests of the States as of the Dominion of India. The
overwhelnain of States are geographically linked with India and

therefore this Dominion had by far the bigger stake in the solution of

THE BSHDIAN. STATES

531

this probleiii. ' It IS a great triumph for . the realism baud 's of
responsibility of the Rulers and the Governments" of the Stales as well as
for the Government of India that it was possible to.produce an Instrument
of Accession which was equahy acceptable to both sides ; and one*
moreover, so simple and so straightforward that within less than three
weeks practically all the States concerned had signed the Instru^
Accession and the Standstill Agreement There is thus established a

unified political structure covering over 300 million people and the major
part of this great sub-continent The only State of the first importance
that has not yet acceded is the premier State, Hyderabad. Hyderabad
occupies a unique position in view of its size, population and resources,
and it has its special problems. The Nizam, while he does not propose
to accede to the Dominion of Pakistan, has not up to the present felt able
to accede to the Dominion of India. His Exalted Highness has, however,
assured me of his wish to cooperate in the three essential subjects of
external affairs, defence and communications with that Dominion whose
territories surround his State. With the assent of the Government,
negotiations will be continued with the Nizam and 1 am hopeful that we
shall reach a solution satisfactory to alP.

Further radical changes in the constitutional and political position of the
Indian States took place during the period that intervened between August
15, 1947, and the date of the commencement of the Constitution, January 26,
1950; and these changes necessarily affected the scope and nature of the
work of the Constituent Assembly. To understand the background of the
provisions of the Constitution, it is necessary to appreciate their general
featiiresl These political changes may be classified into five categories:
(1) the merger of States’ territories with neighbouring Provinces, (2) the
formation of centrally administered areas, (3) the formation of Unions of
States by the grouping of States which, with due regard to the geographic,
linguistic, social and cultural aflfinities of the people, could be consolidated
into sizable and viable units, (4) the enlargement of the content of accession
of the Unions, and (5) the decision by the Unions of States to entrust their
constitution-making to the Constituent Assembly of India.

The constit^ mechanism by which mergers and formation of unions
took place may briefly be described. The Indian Independence Act, 1947,
provided that the Legislature of each of the new Dominions of India and
Pakistan would have full power to make laws for each Dominion, including
laws having extra-tetritorial operation. In order to enable the Dominion
Government of India to exercise powers of administration over Indian States’
territory an ordinance was promulgated in 1947, called the Extra-Provincial
Jurisdiction Ordinance which enabled the Dominion Government to acquire

^Select Documents I, 88(xii), pp. 568-9.

®For a fuller account, see White Paper on Indian States, atul V, P. Menon, The
Story of the Integration of the Indian States*

532

FRAMING OF ENDU’S CXlNSTITUnON

and exercise legislative, executive and judicial powers in Indian States, where,
under an agreement, jurisdiction and authority were transferred to the
Dominion Government. This Ordinance was later enacted as an Act of
the Dominion Legislative. The process of merger of State territories in
neighbouring Provinces was effected through an agreement executed by the
Ruler, in which he ceded to the Dominion Government full and exclusive
authority, jurisdiction and powers for, and in relation to, the governance
of his State, and agreed to transfer the administration of the State to the
Dominion Government on a date specified in the merger agreement. The
agreement further provided that the Dominion Government would be
competent to exercise these powers, authority and jurisdiction in such manner
and through such agency as it thought fit. On assuming the State
administration, the Dominion Government issued an order empowering the
Provincial Government concerned to exercise the necessary jurisdiction,
power and authority.

In the case of States which were constituted and administered as Chief
Co mm issioners’ Provinces the Rulers signed similar merger agreements
ceding full administrative and legislative jurisdiction to the Dominion
Government, and the Government of India then issued the necessary orders
empowering a Chief Commissioner to exercise the necessary administrative
powers.

This procedure gave the Dominion Government, and the Provinces and
Chief Commissioners acting under its authority, adequate legislative,
administrative and judicial power in the States ceding them.

While this arrangement suited the needs of a transitional phase, it did
not fulfil the needs of permanent and organic integration, because under it
a law passed by the Dominion Parliament or the State Legislature did not
apply proprio vigor to the State concerned but had to be applied by a
notification under the Extra-Provincial Jurisdiction Act. It was therefore
found necessary to take a second step in order to secure organic
integration.

This step was the amendment of the Government of India Act, 1935, by
introducing a new section 290-A which provided that where full and
exclusive authority, jurisdiction and powers for and in relation to the
governance of an Indian State or of any group of such States were for the
time being exercisable by the Dominion Government, the Governor-General
could by order direct that the State or group of States should be administered
in all respects as if it was a Chief Commissionef s Province, or formed part
of a Governor’s or a Chief Commissioner’s Province. The Governor-General
was also authorized to make an order giving such supplemental, incidental
and consequential directions (including directions as to representation in the
Legislature) as he considered necessary. There was a further provision
(section 290-B) enabling the Governor-General to direct that an area included
ip a Governor’s Province or the whole or any part of a Chief Commissioner’s

THE INDTm STATES

533

Province might be administered in all respects by an acceding State as if
such area formed part of that State. In pursuance of this amendment, orders
were issued from time to time providing that States merged in the Governors’
Provinces would be administered in all respects as if they formed part of
the absorbing Provinces. These orders also made provision among other
matters for the representation of these merged States in the Legislatures of
the absorbing Provinces.

Similarly orders were issued in regard to the Centrally merged States
directing that these States would be administered in all respects as if they
were Chief Commissioners’ Provinces.

In the case of States which were formed into Unions of States, this was
done through covenants executed by all the Rulers agreeing to form the
Union. A covenant provided that the covenanting States agreed to unite
and integrate their separate territories into one State with a common
executive, legislature and judiciary. The executive authority of the Union
of States was vested in a Rajpramukh to be exercised either directly or
through officers subordinate to hkn. The Rajpramukh was usually the Ruler
of the most important of the covenanting States and his position was more
or less that of the Governor in a Province. The Rajpramukh was to have
a Council of Ministers to aid and assist him in the exercise of his functions;
he was given law-making powers, and the covenant empowered him to
promulgate Ordinances for the peace and good government of the Union.
The covenants also made provision for the setting up of a Constituent
Assembly for each of these Unions which would frame a constitution for
each Union within the framework of the covenant and the Constitution
of India and providing for a Government responsible to the
Legislature.

Merger and integration formed a continuing process. The first group of
States to be affected by this process was the group of States in Orissa and
the Central Provinces and Berar which merged into the respective Provinces
on January 1, 1948. The process continued through 1949 and 1950. The
Saurashtra State was formed in February 1948 and the Patiala and East
Punjab States Union in August 1948. Madhya Bharat, Rajasthan and the
Travancore-Cochin Union were formed in 1949. The last of the States to
merge in a Province was Cooch-Behar whose Ruler transfmed his State
to the West Bengal Government on January 1, 1950. Vindhya Pradesh,
which was earlier constituted into a Union of States with a Rajpramukh, was
on the same date constituted into a centrally administered area.

The three statements from the White Paper on the Indian States reproduced
at the end of this chapter specify the States which merged with the Provinces,
those which became Chief Commissioners’ Provinces and those which were
formed into Unions of States. (See pp. 554 ff.)

In the initial stages of constitution-making the Constituent Assembly and
its committees were inevitably not in a position to frame any specific or

FRAMING OF INDIA’S CONSTITUTION

534

clear-cut proposals in regard to the manner in which the Indian States should
be handled. The Assembly was bound by the limitations contained in the
Cabinet Mission’s statement, the two principal features of which were :

(i) that the forms of government and the internal constitutions of Indian
States would not be a matter for the Constituent Assembly of India ;
andi

(ii) that the Indian States would retain all subjects and powers other
than those ceded to the Centre.

Further, at this stage there was no indication as to the mode of entry of
States in the Union. The Union Constitution Committee, in its report of
July 4, 1947. envisaged federated as well as unfederated Indian States. While
the Governors’ Provinces and the Chief Commissioners’ Provinces would
automatically be within the jurisdiction of the Federation of India, the
committee was of the view that a special procedure would have to be
prescribed for determining which of the Indian States were to be included
initially in the schedule of federated States. The committee observed that
under the Act of 1935, accession was to be signified by an Instrument of
Accession executed by the Rulers. If it was considered undesirable to use
this term or adopt this procedure, some kind of ratification might have to
be prescribed^

One feature of the committee’s recommendations deserves comment. It
has already been mentioned that under foreign jurisdiction, the Government
of India acting in some cases through the Provincial Governments had been
exercising legislative, administrative and judicial functions over areas in
Indian State territory — cantonments, railway lands, canal and other areas.
These powers, derived from foreign jurisdiction, had in 1937 gone over to
the Crown Representative; but the reason for their continuance was still
dictated by the requirements of all-India policy. The cantonments were
required for British Indian troops; and control over railway lands was
necessitated by all-India considerations of safe travel. The memory of the
exercise of governmental powers in all-India interest was still fresh in the
minds of the Constitutional Adviser and the Union and Provincial Constitution
Committees. In the memoranda on the Union and Provincial Constitutions
provision had been included whereby the Union or a Provincial Government
could, under agreement with individual Indian States, or groups of Indian
States, continue to exercise these powers. Thus the Union Constitution
Committee had included provision to cover the contingency that there might
be Indian States which, though unfederated and not in the schedule, might
have ceded jurisdiction for certain special purposes to the Union by treaty
or agreement: and the Provincial Constitution Committee’s Report likewise
contained a clause which envisaged the possibility that Indian States or
groups of States might cede jurisdiction to a neighbouring Province if they

^Select Documents 11, S15-S.

THE INDIAN STATES

535

wished to have a common administration in specified matters of common
interest^

No mention of Indian States was made in the Union Powers Committee’s
Report, except that it was recommended that these States should be on a
par with the Provinces as regards the Federal Legislative List, subject to
the consideration of any special matter which might b© raised when the
lists had been prepared. Nor were these matters affecting the relationship
of the Indian States with the Union discussed by the Constituent Assembly
when the committee’s report was considered in July. 1947.

The Draft Constitution prepared by B. N. Rau in October 1947 did not
represent any advance on this position. This Draft envisaged the existence
of federated States and non-federated States. The accession of States was
to be by agreement between a State or a group of States and the Federal
Government ; but no indication was given about the manner in which such
agreement would be drawn up or about the way in which grouping of States
would be made. The clause on the distribution of legislative powers envisaged
that the power, of the Federal Parliament to make laws for a federated Indian
State or a group of federated States would be subject to the terms of such
an agreement and the limitations contained therein. To provide for the
exercise of foreign jurisdiction the chapter on administrative relations
between the Federation and the units contained a clause that the Federation
might by agreement with a federated State undertake executive, legislative
or judicid functions vested in the State. The Draft contained another clause
which provided that the Federation might enter into agreements with a
federated or a non-federated State, under which the Federation could
undertake administrative, legislative and judicial functions in that State ;
in the case of a non-federated State every such agreement would be subject
to, and governed by, any law relating to the exercise of foreign jurisdiction as
might be passed by the Federal Parliamenf . The Draft also contained an
article that it would be competent for a Province, with the prior sanction
of the President, to undertake, by an agreement made in that behalf with
any Indian State, legislative, executive or judicial functions in regard to
matters enumerated in the Provincial or Concurrent List* .

The Draft Constitution as settled by the Drafting Committee and released
in February 1948 went a step further though the position continued to be
somewhat nebulous. India was described as a Union of States and the
names of the “States” were set out in Parts I. II and III of the First Schedule.
Part I enumerated the Provinces. Part II the Chief Commissioners’ Provinces
and the Indian States were included in Part III. The enumeration of the
Indian States in this part was necessarily tentative and incomplete. It was

TJnion Constitution Committee Report, Pt. I, para. 1; and Provincial Constitution
Committee Report, Pt I, para. 4. Select Documents II, 18(i) and 24(i), pp. 575, 658.

^Select Documents III, l{i), clauses 181 and 188, pp. 75, 78-9.

^bid., clause 189.

536

FRAMING OF INDIA’S^ CONSTITUTION

ia two divisions; Division A which mentioned nineteen States which were
specified individually by name and Division B which mentioned '‘all other
Indian States which were within the Dominion of India immediately before
the commencement of this Constitution”. The Drafting Committee added
in a footnote:

It is not possible to enumerate each of the States because owing to the
mergers of various kinds many of the States may disappear in larger units.
It will be necessary, however, to enumerate all the States by name before
the Constitution is finally adopted'.

At the time of the publication of the Draft prepared by the Drafting
Committee the process of integration and merger had made a start : and
the internal constitution of Indian States was a matter with which, according
to the agreement between the two Negotiating Committees, the Constituent
Assembly itself would not be concerned. Accordingly no provision was made
in the Draft Constitution for regulating the internal constitutions of the
Indian States. Nor was any indication laid down for the accession of Indian
States or for any other procedure for the association of Indian States with
the Union. So far as the Indian States were concerned, the Draft Constitution
provided that the power of Parliament to make laws for a State or a group
of States specified in Part III of the First Schedule would be subject to the
terms of any agreement entered into in that behalf by that State or group
of States with the Government of India and the limitations contained therein".
The Draft also contained another article providing (i) that no Act of
Parliament could affect the existing right of an Indian State in relation to
posts and telegraphs unless such right was extinguished by agreement between
the Government of India and the State or acquired by the Government of
India ; (ii) that the power of Parliament to make laws with respect to
telephones, wireless, broadcasting and other similar forms of communication
in an Indian State would extend only to the making of laws for their
regulation and control ; and (iii) that the power of Parliament to make
laws with respect to corporations would not extend to corporations owned
or controlled by an Indian State and carrying on business only within the
State". These limitations were introduced at the instance of some of the
representatives of the Indian States.

In the chapter on administrative relations, provision was included in
article 236 enabling the Government of India to undertake executive,
legislative or judicial functions in an Indian State by agreement with the
State'. This article contained another clause under which the Government
of India could enter into similar agreements with the Government of an

Draft Constitution prepared hy the Drafting Committee, February 1948, Select
Documents 6, 64S,

Hbid., article 225, p. 601.

Hbid., article 224, pp. 600-1.
article 236, pp. 605-6.

THE INDIAN STATES

.537

Indian State ^ not specified in the First Schedule oi% in other words, not. .forming
part of the Indian .Union ; such agreements were to be subject .to,, and gover.iied
by, the law relating to the exercise of foreign jurisdiction. Yet another article
in the Draft .Constitution provided for the conclusion of agreements between
Part I States (Governors’ Provinces)- and Indian States, with the previous
sanction of the President, under which the legislative, executive or
judicial functions of an Indian State could be assumed by the Part ■ I
State'.

The Draft Constitution made an ingenious provision regarding Indian States
which had ceded full and exclusive authority, jurisdiction and powers to the
Government of India, and were either absorbed in Governors’ Provinces or
were constituted into Chief Commissioners’ Provinces. The Drafting
Committee observed :

The Committee has also provided that Indian States (such as those of the
Orissa group) which have ceded full and exclusive authority, jurisdiction
and powers to the Central Government may be administered exactly as
if they were Centrally Administered Areas, i.e, through a Chief
Commissioner or Lieutenant-Governor, or through the Governor or the
Ruler of a neighbouring State according to the requirements of each easel

Provision for this purpose was included in article 212 (2) of the Draft
Constitution in the following terms :

Any State for the time being specified in Part III of the First Scheduie
whose Ruler has ceded full and exclusive authority, jurisdiction and
powers for and in relation to the governance of the State to the
Government of India shall be administered in all respects as if the State
were for the time being specified in Part II of the First Scheduie ; and,
accordingly, all the provisions of this Constitution relating to States specified
in the said Part II shall apply to such Statel

The implications of this article were that all these States would be mentioned
by name as Indian States in Part III of the First Schedule and their
individuality retained : and even such of them as had been merged in
Governors’ Provinces would continue to retain their individuality as centrally
administered States.

The Orissa Government strongly criticized this treatment of the States. It
was of the opinion that this plan was wholly unsatisfactory , as the consequence
would be that all States which had acceded to the Indian Dominion and
thereafter ceded their jurisdiction to the Government of India would for ever
retam their territorial integrity and individual political entity, including such
small States as Athgarh and Tijiria (with areas of 168 and 45 square miles).
All these States would be mentioned individually in Part III of the First

'Draft Constitution prepared by the Drafting Committee, February 1948, article 237,
p, m.

mid., p. 515.

Hbid., p. 597.

538

FiElAMlNG OF INDIANS CONSTITUTION

Schedule aad would, for all time to come, retain their iudividual political
entity. Besides, it was not clear whether, assuming that the Governor of
Orissa was by common consent entrusted with the administration of the
Orissa States as the agent of the Central Government, the Governor would
administer this area independently of his Ministers and would, for their
satisfactory and efficient administration, be responsible to the Dominion
Government or Dominion Legislature, or whether he would be advised by
his Ministry. The Provincial Government elaborated these objections at great
length and suggested a specific amendment to the Draft Constitution which
would have the effect of including all these Indian States by name in Part I
of the First Schedule (which enumerated Governors’ Provinces) and
specifically stating that these States would be deemed to form part of the
Governor’s Province of Orissa^ In the notes prepared on this suggestion
in the Constituent Assembly Secretariat, it was stated that the amendment
proposed by the Government of Orissa would amount to the annexation
of the States in question : and that it was not known whether tlie Government
of India would be prepared to go so far. This note added that the impression
was that the result of the Orissa type of merger was not to destroy the
integrity of each such State and that in this respect it differed from the
Kathiawar type of merger where the individual States had ceased to exist.
At the same time an amendment to the clause was suggested, which provided
for a redraft of the clause as follows :

Any State for the time being specified in Part III of the First Schedule,
whose Ruler has ceded full and exclusive authority, jurisdiction and powers
for, and in relation to, the governance of the State to the Government of
India, or any group of such States, shall be administered in all respects as if
the State or the group of States were for the time being specified in
Part 11 of the First Schedule; and accordingly, all the provisions of this
Constitution relating to States specified in the said Part II shall apply to
such State or group of States :

Provided that the President may, at any time, by order direct that any
such State or any group of such States shall be governed for all purposes
as if the State or the group of States formed part of a named State
specified for the time being in Part I of the First Schedule and he may,
by such order, give such incidental and consequential directions (including
directions as to representation in the Legislature) as may be necessary
for the purpose®.

This was accepted by the Drafting Committee and notice of the
amendment was accordingly given. Subsequent developments made the
question of the Indian States far more simple.

Introducing the Draft Constitution in the Assembly on November 4,

Comments and Suggestions on the Draft Constitution, Select Documents IV, l(i),
pp. 229-40.

Hbid,. p. 240.

THE INDIAN STATES

539

1948, Ambedkar '. had a few, sigaificaat comments to make on the position
of the Indian States. He referred to the fact that Indian States were not
bound to accept the whole list of subjects included in the Union List but
only those which came under defence, foreign affairs and . communications'.
Nor, he said, were they bound to accept subjects included in the Concurrent
List. They were free to create their own Constituent Assemblies and to
frame^ their constitutions. He considered . this position as very unfortunate
and quite indefensible and feared that this disparity might even prove
dangerous to the efficiency of the State. But he added that the Drafting
Committee was bound by the decisions of the Constituent Assembly and
the Assembly in its turn was bound by the agreement arrived at between
the two negotiating committees. Having said this he proceeded to paint
a more optimistic picture of the situation. Out of the nearly six hundred
States that existed on August 15, 1947, through their integration with Indian
Provinces or merger among themselves or the Centre having taken them
as Centrally Administered Areas, there remained only 20 to 30 as “viable’’
States. He said:

This is a very rapid process and progress. 1 appeal to those States that
remain to fail in line with the Indian Provinces and to become full units
of the Indian Union on the same terms as the Indian Provinces. They
will thereby give the Indian Union the strength it needs. They will save
themselves the bother of starting their own Constituent Assemblies and
drafting their own separate constitutions and they will lose nothing
that is of value to them. I feel hopeful that my appeal will not go in
vain and that before the Constitution is passed, we will be able to wipe
off the differences between the Provinces and the Indian States^

Meanwhile, events of great moment affecting al! the provisions relating to
the Indian States were taking place outside the Assembly. In the first place,
the process of merger and integration was proceeding apace and by the time
the Constituent Assembly came near the end of its labours, the number of
Unions of States had been reduced to only six — Rajasthan, Madhya Bharat,
Saurashtra, Travancore-Cochin, PEPSU (Patiala and East Punjab States
Union) and Vindhya Pradesh. Hyderabad, Mysore, and Jammu and
Kashmir continued to remain separate entities. There were seven Chief
Commissioners’ Provinces formed out of the territories of Indian States —
Himachal Pradesh. Kutch. Manipur„ Tripura, Bhopal, Cooch-Behar and
Bilaspur. All the remaining States had been merged in the neighbouring
Provinces.; „

Consideration had also been given by the Government of India in the
Ministry of States to the task of bringing the States into the financial
framework of a federal structure. Commenting on this point, the Joint

¥oL'Vii,,.,p.'42.' ■ ,,

Hbid,, pp. 42-3.

^540

FRAMING OF INDIANS CONSTITUTION

Select Committee on Indian Constitutional Reform, which in 1934 had
examined the position of Indian States, made the following observations
which ably summarized the anomalous position in this respect :

The existing arrangements under which economic policies, vitally affecting
the interests of India as a whole, have to be formulated and carried out
are being daily put to an ever-increasing strain, as the economic life
of India develops. For instance, any imposition of internal indirect
taxation in British India involves, with few exceptions, the conclusion
of agreements with a number of States for concurrent taxation within
their frontiers, or, in default of such agreement, the establishment of
some system of internal customs duties — an impossible alternative, even if it
were not precluded by the terms of the Crown’s treaties with some States.
Worse than this, India may be said even to lack a general customs
system uniformly applied throughout the sub-continent. Gn the one hand,
with certain exceptions, the States are free themselves to impose internal
customs policies, which cannot but obstruct the flow of trade. Even at
the maritime ports situated in the States, the administration of the
tariffs is imperfectly coordinated with that of the British Indian ports,
while the separate rights of the States in these respects are safeguarded
by long-standing treaties or usage acknowledged by the Crown. On the
other hand, tariff policies, in which every part of India is interested, are
laid down by a Government of India and British India Legislature in
which no Indian State has a voice, though the States constitute only
slightly less than half the area and one-fourth of the population of India. . .
Moreover, a common company law for India, a common banking law,
a common body of legislation on copyright and trade marks, a common
system of communications are alike impossible. Conditions such as these
which have caused trouble and uneasiness in the past, are already
becoming and must in the future increasingly become intolerable as
industrial and commercial development spreads from British India to the
States\

The position continued to be much the same at the time of the transfer
of power and the framing of the Constitution. By a resolution dated October
22, 1948 the Ministry of States set up a committee, called the Indian States
Financial Enquiry Committee, with V. T. Krishnamachari as Chairman and
S, K. Patil and N. Dandekar as members, to examine and report on the
structure of public finance in the Indian States and the Unions of Indian
States and the feasibility of integrating federal finances in Indian States and
Unions with that of the rest of India “to the end that a uniform system
of federal finance may be established throughout the Dominion of
india”^.;V/:,:

^Report, para 31.

kite Paper on Indian States, p,

TOE INDIAN STATES

541 ,

The eommittee .submitted in June 1949 its report on Baroda, the
most important of the .States to be merged in the Provinces : and followed
this up with reports on all the Unions of States as well as Hyderabad
and Mysore. The main principle which the committee recommended
was : .

Federal financial integration must be based upon complete equality between
Provinces and States in the following respects : (1) the Central Government
should perform the same functions and exercise the same powers in States
as in Provinces; (2) the Central Government should function through its
own executive organizations in States as in Provinces ; (3) there should be
uniformity and equality in the basis of contributions to Central resources
from Provinces and States ; (4) there should be equality of treatment as
between Provinces and States in the matter of common services rendered
by the Central Government, and as regards the sharing of divisible federal
taxes, grants-in-aid, ‘subsidies’, and all other forms of financial and technical
assistance\

Accordingly, the committee recommended that the financial relations
between the States and the Centre would be the same as those between the
Provinces and the Centre, but with certain special adjustments to provide for
a transitional period. The recommendations of the committee were accepted
by all the States concerned and necessary agreements executed between the
Government of India and the Statesl

On the constitution-making side also the integration of the States and the
setting up of popular governments in the Unions of States naturally produced
certain radical changes in the attitudes of their respective Governments. It
may be recalled that when they were in full authority the Rulers of States
wanted it to be accepted as a basic principle that the Constituent Assembly
would guarantee non-interference with the internal constitutions of the
States. Following this arrangement it was provided in the covenants relating
to the formation of Unions of States that the constitutions of these Unions
would be framed by their own Constituent Assemblies. Such Constituent
Assemblies had been set up in Saurashtra and Travancore-Cochin but not in
the other Unions. A constitution-making body was also functioning
in Mysore*

In November 1948 the States Ministry set up a committee to frame a
model constitution which could be adopted by the States and Unions. By
that time it became clear that unless proper guidance was given to the States
in the matter of constitution-making, there would be so much variation in
the pattern of State constitutions that a veritable jigsaw puzzle would be
the result. It was felt desirable that a model constitution should be prepared
and that this should be done under the aegis of the Constituent Assembly.

^ White paper on Indian States^ p. 87,

Hbid.. p. 99.

542

FRAMING OF INDIA’S CONSTITUTION

The committee was presided over by B. N. Rau, the Constitutional Adviser ;
its other members were K. M. Munshi, P. Govinda Menon (from Cochin) and
R. U. Singh (Dean, Faculty of Law, Lucknow University). Of these, Munshi
and Govinda Menon were members of the Assembly. Four representatives
of the States in the Constituent Assembly were subsequently added to the
committee — Ram Sahai (Gwalior), K. Hanumanthaiya (Mysore), R. Sankar
(Travancore) and C. C. Shah (Saurashtra). The committee submitted its
report in March 1949h The model constitution for the Indian States
generally followed the provincial pattern and the provisions of the draft
constitution for the Provinces were adopted with certain modifications.
Proceeding on the assumption that the Indian States would accede to the
Union of India by suitable instruments in respect of all subjects in the Union
and Concurrent Lists, the committee suggested that if the model constitution
proposed by it was accepted generally by the various constitution-making
bodies in the Indian States, the best mode of giving effect to the proposals
would be to insert a special part in the Draft Constitution of India to deal
with the constitutions of the Indian States. This part would provide, in
effect, that the provisions relating to Provinces would apply to the Indian
States, subject to certain specified variations set out in a separate schedule
to the Constitution.

Consideration of this report presented certain practical difficulties in the
procedure suggested by the B. N. Rau Committee. At that time Constituent
Assemblies had not yet been set up in Rajasthan, PEPSU, Vindhya Pradesh
and Madhya Bharat, because the newly formed popular Governments in
these Unions were still grappling with the initial problems presented by the
integration of several States. The need to get the new constitutions
functioning in all the States became one of urgency since the Constitution
for the whole of India was to come into force in January 1950. In the light
of these difiBculties the entire question was considered in May 1949 at a
conference of the Premiers of the various Unions and States. This conference
decided not to wait until the Constituent Assemblies set up in all the Unions
of States had framed their respective constitutions. Especially in view of the
fact that the guidelines for State constitutions had l^en evolved, the task
of framing constitutions for all the States could be left to the Constituent
Assembly which would, in view of past commitments, function with the
consent and concurrence of individual States. The intention was, as stated
in the B. N. Rau Committee’s Report, that the provisions of the
Constitution relating to the Provinces should apply to Indian States as well :
and an official committee was set up in the Ministry of States charged with
the work of suggesting amendments to implement this decision. The
recommendations of the committee were discussed with the Drafting
Committee of the Constituent Assembly and the Drafting Committee

^Select Documents IV, 8(i), pp. 548-53.

THE INDIAN STATES

543

eventually finalized the amendments to be made to provide for the ind ig n
States.

Copies of the draft amendments and the Draft Constitution of India were
then sent to Saurashtra, Travancore-Cochin and Mysore. They were accepted
by the Constituent Assemblies of these States with certain minor
suggestions. It was also agreed that the Rajpraraukhs of all Unions of
States would issue, proclamations,, the operative part of which read
as follows :

That the Constitution of India shortly to be adopted by the Constituent
Assembly of India shall be the Constitution for. . . State as for other parts
of India and shall be enforced as such in accordance with the tenor .of its
provisions;

That the provisions of the said Constitution shall, as from the date of its
commencement, supersede and abrogate all other constitutional provisions
inconsistent therewith which are at present in force in this State\

Similar proclamations were also issued by the Nizam of Hyderabad and
the Maharajas of Mysore and Jammu and Kashmir.

So far as the “merged” States were concerned, it was held that the cession
of plenary jurisdiction was sufficient for the Constituent Assembly to make
the Constitution binding on these States without the necessity of any further
public act on the part of the Ruler (who was already functus officio} by
way of adopting the Constitution.

After the concurrence of all the States had been obtained to the
Constituent Assembly of India itself framing a constitution for the whole
of India including the States, the necessary amendments were moved on
behalf of the Drafting Committee in the Constituent Assembly. The more
important of these may be noticed.

The first point was the process adopted by the Drafting Committee to
include the territories of the former Indian States in the new Union of
India. These territories feU into three categories. In the first category were
States whose territories had been absorbed in neighbouring Rrovinces ; the
Provinces of Assam, Bihar, Bombay, the Central Provinces and Berar
(subsequently named Madhya Pradesh), Madras, Orissa, &ist Punjab and
the United ftovinces (subsequently named Uttar Pradesh) had Indian States
absorbed in their territories. As already mentioned, the original plan of the
Drafting Committee was to treat all these States as Centrally Administered
Areas and enumerate them in Part II of the First Schedule. This plan had
been strongly opposed by Orissa. It was given up and the Drafting
Committee adopted the simple course of listing the States under the new
Constitution and adding an explanation to the effect that the territories of
these States would comprise the territories of the corresponding Provinces

''■White Paper on Indian States, pp. 365-ff. Also see V, P, Menon, The Story
of the Integration of the Indian States.

544

FRAMING OF INDIA’S CONSTITUTION

plus thQ territories of the merged Indian States, The amendment moved by
Ambedkar described the Part I States as follows:

THE STATES AND THE TERRITORIES OF INDIA

Part I

Names of States

1 . Assam

2. Bengal

3. Bihar

4. Bombay

5. Koshal-Vidarbha^

6. Madras

7. Orissa

8. Punjab

9. United Provinces®

Names of corresponding Provinces
Assam
West Bengal
Bihar
Bombay

Central Provinces and Berar

Madras

Orissa

East Punjab

United Provinces

Territories of States

The territory of the State of Assam shall comprise the territories which
immediately before the commencement of this Constitution were
comprised in the Province of Assam, the Khasi States and the Assam
Tribal Areas. The territory of the State of West Bengal shall comprise
the territory which immediately before the commencement of this
Constitution was comprised in the Province of West Bengal.
The territory of the State of Bombay shall comprise the territory which
immediately before the commencement of this Constitution was comprised
in the Province of Bombay and the territories which by virtue of an
order made under section 290-A of the Government of India Act, 1935,
were immediately before such commencement being administered as if
they formed part of that Province or which immediately before such
commencement were being administered by the Government of that
Province under the provisions of the Extra-Provincial Jurisdiction Act, 1947.
The territory of each of the other States shall comprise the territories
which immediately before the commencement of this Constitution were
comprised in the corresponding Province and the territories which by virtue
of an order made under section 290-A of the Government of India Act,
1935, were immediately before such commencement being administered as if
they formed part of that Province^

The reference to the areas in Bombay falling under the Extra-Provincial
Jurisdiction Act was necessary because of a small State called Sirohi which
was administered by the Provincial Government under the Act conferring

^Subsequently named Madhya Pradesh.

^Subsequently named Uttar Pradesh.

3(7/^. Vol. X, pp, 286-7.

THE 'INDIAN "STATES

545

SEch iBrisdictioB. By the time the Cohstitiitioii was taken up for :'the third
reading the Government of India had taken a decision that the State sioiild
be divided. Part of it was merged in Bombay raider section 290- A of, the
GO'Vernment of India Act, 1935, and part was to be administared by the
Rajasthan • Union under the Extra-Provincial Jurisdiction Act. As a
consequence of this decision the explanatory paragraph relating to Bombay
v/as omitted at the third reading*.

In the second category of Indian States were those which were being
administered as, or included in. Chief Commissioners’ Provinces. These were
Bhopal, Bilaspiir, Cooch-Behar, Himachal Pradesh, Kutch, Manipur, Rampur
and Tripura. They were included in Part II of the First Schedule and a
similar explanatory paragraph was added laying down that the territory
of each of these States ''shall comprise the territories which, by virtue of an
order made under section 290-A of the Government of India Act, 1935, were
immediately before the commencement of this Constitution administered
as if they were a Chief Commissioner’s Province of the same name”®.

By the time the revision of the Constitution by the Drafting Committee
was completed, Rampur had been merged in the United Provinces, It was
therefore omitted from this Part®,

This left nine States which were included in Part III. These were
Hyderabad, Jammu and Kashmir, Madhya Bharat, Mysore, PEPSU, Rajas-
than, Saurashtra, Travancor e-Cochin and Vindhya Pradesh. The description
of the territories of these States was as follows :

The territory of the State of Rajasthan shall comprise the territories
which immediately before the commencement of this Constitution were
comprised in the United State of Rajasthan and the territories which
immediately before such commencement were being administered by the
Government of that State under the provisions of the Extra-Provincial
Jurisdiction Act, 1947.

The territory of the State of Saurashtra shall comprise the territories which
immediately before the commencement of this Constitution were comprised
in the United States of Kathiawar (Saurashtra) and the territories which
immediately before such commencement were being administered by the
Government of that State under the provisions of the Extra-Provincial
•' ' ' Jurisdiction Act, 1947. ■■

The territory of each of the other States shall comprise the territory which
immediately before the commencement of this Constitution was comprised
\ in the, corresponding Indian State^ ■ ■

Consequent on the decision taken subsequently that Panth Piploda (which

’C. A, Deb,. VoL XI, p, 603.
mid,. VoL X, p. 287,

'^Draft Constitution as revised by the Drafting Committee, November 3, 1949,
Select Documents IV, 18(ii), p. 903.

A, Deb,. VoL X, pp. 287-8.

546

FRAMING OF INDIA’S CONSTITUTION

was earlier included in Ajmer) should be merged in Madhya Bharat, a drafting
change became necessary at the third reading and the description finally
adopted read ;

The territory of each of the States in this Part shall comprise the territory
which immediately before the commencement of this Constitution was
comprised in the corresponding Indian State, and —

(a) in the case of each of the States of Rajasthan and Saurashtra, shall
also comprise the territories which immediately before such
commencement were being administered by the Government of the
corresponding Indian State, whether under the provisions of the Extra-
Provincial Jurisdiction Act, 1947, or otherwise; and

(b) in the case of the State of Madhya Bharat, shall also comprise the
territory which immediately before such commencement was comprised
in the Chief Commissioner’s Province of Panth Piploda’.

The corresponding Indian State for the purpose of this description was
not mentioned in the Constitution but was left, in case of doubt, to be
determined by the President under article 366(7).

In the course of the revision of the Constitution, the Drafting Committee
renumbered the Parts of the First Schedule as follows : Part I (enumerating
the States corresponding to Governors’ Provinces) was changed to Part A;
Part II, listing the States corresponding to the Chief Commissioners’ Provinces,
was changed to Part C; while Part III which mentioned the States
corresponding to the Indian States, was changed to Part B. In the rest of
this chapter this description will be adopted for purposes of convenience.

Subsequent to the passing of the Constitution by the Assembly two changes
were made in the list of States in the First Schedule. The State of Cooch-
Behar which was constituted into a Chief Commissioner’s Province in
September 1949 was merged in West Bengal on January 1, 1950; and
Vindhya Pradesh, a State which was included in Part B of the First Schedule
as passed by the Constituent Assembly, was converted into a Chief
Commissioner’s Province on the same date. Accordingly, it became necessary
to omit Gooch-Behar from the list of Chief Commissioners’ States and add
Vindhya Pradesh to that list. This was effected by an order of the Governor-
General made on January 25, 1950, under articles 391 and 392 of the
Constitution which empowered the President to make changes in the First
and Fourth Schedules’.

A series of amendments provided for the internal constitutions of the
States and their position in the Union. The States which were merged in the
Governors’ Provinces automatically became integral parts of the
corresponding States mentioned in Part A of the First Schedule and the
provisions of the Constitution relating to Part A States became automatically

VC. d. De&.. Vol. XI, p. 603.

®The Constitution (Amendment of the First and Fourth Schedules) Order. 1950.

THE INDIAN STATES

547

applicable to them. Likewise the States formed into Chief Commissioners’
Provinces were included in Part C of the Schedule and Part VII of the
Draft Constitution relating to such States became applicable to them (Part
VIII of the Constitution as finally adopted). The remaining States
(Hyderabad, Jammu and Kashmir, Mysore, Madhya Bharat, PEPSU.
Rajasthan. Saurashtra, Travancore-Cochin and Vindhya Pradesh) were
included in Part B of the schedule and a separate part (Part VI-A) was
included providing for the internal constitution' of all these States except
Jammu & Kashmir. This part provided that the provisions of Part VI,
namely, those applicable to Part A States (which corresponded to Governors’
Provinces) would also apply to these States subject to certain modifications
and omissions. In other words, each of these States would have a democratic
Government with a Council of Ministers functioning in responsibility to a
Legislature constituted in the same manner as for the Provinces. The State
Legislatures would be set up on an exactly similar pattern and the procedure
for legislation, appropriation of funds, voting of supplies and other matters
of legislative procedure would be the same throughout India. Mysore was
to have two chambers and the Legislatures of the other States were to be
unicameral. The judiciary, including the High Courts, would be constituted
in the same way and exercise the same functions and jurisdiction.

The modifications required for meeting the special circumstances of these
States were few. The most important was that the heads of these States were
designated Rajpramukhs. The term “Rajpramukh” was defined as meaning
(1) in relation to the State of Hyderabad, the Nizam; (2) in relation to the
State of Jammu and Kashmir and the State of Mysore, the Maharaja of the
State; and (3) in relation to the other States, the person recognized by the
President as the Rajpramukh. The intention was that the President’s
recognition would be given in accordance with the provision cdntained in
the various covenants providing for The constitution of these States.

Each of these covenants and, in the case of Hyderabad and Mysore,
special agreements concluded between the Government of India and the
Rulers, provided for the payment of allowances and the provision of
amenities to the Rajpramukhs. Accordingly, a special provision, in this part
of the covenant was adopted as follows :

Unless he has his own residence in the principal seat of Government of his
State, the Rajpramukh shall be entitled to the use of an official residence
of rent, and there shall be paid to the Rajpramukh such
allowances as the President may, by general or special order, determine^.

'Since renumbered Part VH. This was introduced in the Assembly on Oct. 12,
1949, C. A. Deb.. Vol. X, pp. 154-5.

V. A. Deb'., Vol. X, p. 204. Some verbal changes were made subsequently by the
Drafting Committee, and the final provision read :

The Rajpramukh shall, unless he has own residence in the principal seat of the
Government of the State, be entitled without payment of rent to the use of an official

548

FRAMING OF INDIANS CONSTITtlTION

. One ' Special ; provision was included in the case of Travancore-Gochin
providing that a sum of 51 lakhs of rupees (Rs. 51,00,000) which was required
to be paid annually to the Devaswom fund under the covenant entered' into
before the commencement of the Constitution for the formation of the United
State of Travancore-Cochin, would be ‘"charged'* expenditure. This provision
has ■ an interesting history, which is narrated in V. P. Menon's book on the
'integration of States :

Travancore had been ruled by an unbroken line of Hindu kings from the
earliest times and had retained throughout the centuries its essential
character of a Hindu State. The most important temple in the State has
always been, and still is, the Sri Padmanabha Temple richly endowed and
possessing very extensive landed properties. These were originally managed
by a Yogam (or synod) of eight hereditary trustees and the Ruler.

But at the beginning of the eighteenth century the Yogam was ousted
and the administration of the temple together with its properties was
taken over entirely by the Ruler... Apart from this temple, there were
a number of Devaswoms (temples in the State founded and endowed by
the people and managed by trustees)... In 1948 immediately before the
grant of responsible government a proclamation was issued by which a
yearly sum of Rs. 50 lakhs was fixed for the maintenance of all the temples
in the State other than the Sri Padmanabha Temple which was to receive
Rs. 1 lakh annually. In connection with the draft amendments to the new
Constitution the State Legislature suggested that this charge should be
assumed by the Government of the State and that this payment should be
non-voted. This suggestion was accepted^

The other amendments included in this Part were of a minor nature.

In order to accord with the new situation amendments had also to be made
in other parts of the Draft Constitution. In the chapter on legislative
relations the legislative powers of Part B States were not specified; clause

(2) of article 217 in the Draft Constitution prepared by the Drafting
Committee provided that the legislative jurisdiction with respect to
Concurrent subjects would vest in the Union as well as Part A States: clause

(3) conferred exclusive powers in regard to State List subjects on the Part
A State Legislatures. In these articles no mention had been made of Part
B States. On June 13, 1949 T. T. Krishnamachari moved two amendments,
accepted by the Assembly, adding Part B States to both these clauses. The
effect of these amendments was to bring Part B States to the same position
as Part A States in respect of State subjects and Concurrent subjects^
Article 224 in the Draft Constitution imposed certain restrictions on the
powers of Parliament to make laws applicable to these Part B States about

residence and shall also be entitled to such allowances and privileges as the President
may, by general or special order, determine. [Article 238(3).]

^V. P. Menon, of the Integration of Indian Statesy p, 283.

V K:. A. Deb,, VoL'.VIILp. 793. ,

THE INDUN STATES

549

posts and telegraphs, telephones, wireless, broadcasting and corporations.
Draft article 225 provided that the extent of the legislative power of
Parliament over Part B States or a group of States would be subject to the
terms of any agreement entered into by that State or group of States with
the Government of India and the limitations contained therein- Both these
articles were deleted on an amendment moved by Ambedkar on October 13,
1949. Article 231 laid down how inconsistencies between Acts of Parliament
and those of State Legislatures were to be resolved, but the article dealt
with only Part A States : an amendment moved by Ambedkar was adopted
on June 13, 1949, including Part B States also in the article. A similar
amendment was made in article 232 on the same day including these States
within the scope of the article*.

In the chapter on administrative relations a special article was added
providing that the armed forces maintained by the Indian States before the
commencement of the Constitution would continue to be maintained by the
corresponding Part B States, subject to control by the President. These
forces used to be maintained in the past by the Rulers of Indian States, but
their command, strength and equipment were controlled by the Crown
Representative. In the Government of India Act, 1935, there was an entry
excluding the armed forces of Indian States and cantonment areas of Indian
State troops from the jurisdiction of the Federal Government and Legislature.
This situation was clearly inconsistent with the new scheme of Federal Union
in which aU States were equal partners. In making provision for this matter,
K. M. Munshi pointed out that the position as it existed would no longer
be appropriate, as there could be only one army now in India and that
would be the army of the Union. He proposed that under this article the
few contingents which were left in the States would be treated as
part of the Indian Army: but since it would take some time for
them to be absorbed totally in the regular Indian army, the power
of control over these forces was, for this transitional period, vested in
the Rajpramukhsl

Articles 236 and 237 empowered the Union and Part A States to acquire
extra-territorial jurisdiction over Indian States (Part B States) territory by
means of agreements with the Governments of the States. These provisions
had now become inconsistent with the idea that these States should enjoy
the same status as Part A States. Accordingly, on an amendment moved
by Ambedkar on October 13, 1949, they were omitted and in their place
a new article was substituted authorizing the Union to mdertake
executive, legislative and judicial functions in areas outside the territory of
India’.

*C. ^. Vol. VIII, p. 815.

*Art. 235-A (art. 259 as finally passed by the Assembly). C. A. Deb., Vol. X, p. 203.

’Article 236 (art. 260 in the Constitution as finally passed). Ibid,. Vol. X, pp. 175
and 207.

550

FRAMING OF INDIA’S CONSTITUTION

In. the chapter on financial relations certain modification became necessary.
The proviso to article 255 enabled the making of grants-in-aid for
implementing welfare schemes for Scheduled Tribes and Scheduled Areas but
such grants were to be made only to Part A States*. Ambedkar moved on
August 8, 1949 an amendment so as to extend the scope of the clause to
all States alike\

Mention must also be made of amendments intended for the specific
application of certain provisions to the Indian States in view of the federal
financial arrangements between them and the Government of India. The
first of these was an amplification of article 258 of the Draft Constitution
prepared by the Drafting Committee in the light of the federal financial
integration agreements. It empowered the Government of India to enter
into an agreement with a Part B State providing for the levy and collection
of Union taxes and duties and the distribution of their proceeds otherwise
than as provided in the Constitution; for the grant of financial assistance
to these States in consequence of any loss in revenue which they formerly
derived from what would in future be federal taxes and duties: and for
any contributions on account of privy purse liability, which would be taken
over by the Centre’. Another article (274-DD) enabled the States, if they had
been levying export and import duties, to continue to levy them by agreement
with the Government of India. These arrangements were specifically stated
to be of a transitional character, to continue for a period of not more than
ten years ; further the President was empowered to terminate (after a period
of five years) these special arrangements at any time on a consideration of
the report of the Finance Commission’. Lastly, there was an article (267-A)
under which the liability for the payment of privy purses to Rulers, which
hitherto was that of the State Governments, would be taken over by the
Government of India’.

There were two other provisions affecting Rulers. One article moved
by T. T. Krishnamachari on October 16, 1949, expressly barred the
jurisdiction of the Supreme Court and all other courts in any dispute arising
out of the provisions of a treaty, agreement, covenant, engagement, sanad
or other similar instrument entered into by a Ruler, to which the Dominion
Government or any of its predecessor Governments was a party’. The
other enjoined on the Legislatures and executives of the Union and the
States always to have due regard for any guarantee or assurance given to
the Rulers’.

^Now article 275.

‘C. A. Deb., Vol IK, p. 264

® Article 278 of the Constitution.

‘Article 306 of the Constitution.

‘Article 291 of the Constitution. ' .

‘Article 302-AA (now article 363). C. A. Deb., Vol. X, pp. 345-7.

’Article 302-A (now article 362). Ibid., p. 116.

THE INDIAN STATES

■ 551 '

^ Mention ■must also be made of an important provision ' which placed . these
States in a ' comparatively nnfavonrable position. An article was moved
(306-B) to provide that for a period- of ten years or during such longer or
shorter period as Parliament might by law provide, the Government of ' every
State in ' Part B of the ' First Schedule ‘‘shall be under the general control
of, and shall comply with- such particular directions, if any, as may-, be-
given' from time to time by the President”'. The object of this provision
was: explained in a statement made on October 12 by Vallabhbhai Patel in
the following words :

The stress of the transitional phase is likely to continue for some years.
We are ourselves most anxious that the people of these States should
shoulder their Mi responsibilities: however, we cannot ignore the fact
that while the administrative organization and political institHtions are to
be found in most of the States in a relatively less developed state, the
problems relating to the integration of the States and the changeover from
an autocratic to a democratic order are such as to test the mettle of
long-established administrations and experienced leaders of people.
We have, therefore, found it necessary that in the interest of the growth
of democratic institutions in these States no less than the requirements
of administrative efficiency, the Government of India should exercise
general supervision over the Governments of the States till such time as
it may be necessary''.

The statement made specific reference to Mysore and the Travancore-
Cochin Union where democratic institutions had been functioning for a long
time and where Governments responsible to Legislatures were in office,
and recognized the need for treating those States differently from States not
conforming to these standards. An assurance was given that the control
would be exercised in varying degrees, according to the requirements of
each case.

A somewhat detailed account of the progress of mtegration of the States
was given in a statement made before the Constituent Assembly by
Valiabhbhai Patel. He summed up the position as follows :

The amendments which are now being proposed concerning the provisions
of the Constitution applicable to the States embody the results of the
bloodless revolution which, within a remarkably short period, has transformed
the internal and external set-up of the States. The fact that the new
Constitution specifies only nine States in Part III of Schedule I is an index
to the phenomenal progress made by the policy of integration pursued by the
Government of India. By integrating 500 odd States into sizable units
and by the complete elimination of centuries-old autocracies, the Indian
democracy has won a great victory of which the Princes and the people of

‘Articie 37! of the Constitution.

A, Deb,, VoL X, p. 164

552

FRAMING OF INDIA’S CONSTITUnON

India alike should be proud. This is an achievement which should redound
to the credit of any nation or people at any phase of history'.

On account of the peculiar circumstances relating to the Jammu and
Kashmir State, it was not considered appropriate at that stage that the
provisions relating to the other Indian States should apply to that State;
and, on October 17, 1949, Gopalaswami Ayyangar introduced a special
article (306-A)" specifically governing the relation of the State with the
Union of India. Tlie State of Jammu and Kashmir had acceded to the
Union of India on October 26, 1947; and, as in the case of the other Indian
States, this accession had taken place by means of an Instrument of Accession
executed by the Ruler of the State and accepted by the Governor-General
of India. As Gopalaswami Ayyangar explained, the Instrument of
Accession would in the case of all these States be a thing of the past in
the new Constitution. .

The States have been integrated with the Federal Republic in such a
manner that they do not have to accede or execute a document of
accession for the purpose of becoming units of the Republic, but they are
mentioned in the Constitution itself : and in the case of practically all
States other than the State of Jammu and Kashmir their constitutions have
also been embodied in the Constitution for the whole of India. All those
other States have agreed to integrate themselves in that way and accept
the Constitution provided.

Go|ralaswami Ayyangar went on to explain the distinction made in the
Constitution between these States and the State of Jammu and Kashmir. He
said :

In the first place, there has been a war going on within the limits of
Jammu and Kashmir State.

There was a cease-fire agreed to at the beginning of this year and that
cease-fire is still on. But the conditions in the State are still unusual and
abnormal. They have not settled down. It is therefore necessary that the
administration of the State should be geared to these unusual conditions
until normal life is restored as in the case of the other States.

Part of the State is still in the hands of rebels and enemies. We are
entangled with the United Nations in regard to Jammu and Kashmir and
it is not possible to say now when we shall be free from this entanglement.
It was in the light of these complicating factors that the new draft article
made provision for the State. In the first place it was recognized that
Jammu and Kashmir was an integral part of the Indian Union ; and the
article unequivocally stated that article 1 (which enunciated that India would
be a Union of States and that the States and territories of the Union would
be the States and their territories specified in Parts I, II and Til of the First

'C. A. Deb: Vol. X, p. 161.

%V/., pp. 423-9.

THE INDIAN STATES

553

Schedule) would apply to the Jammu and Kashmir State; the name of the
State was also incorporated in Part III of the First Schedule (subsequently
altered to Part B).

The article laid down that, unlike other States in this category, the
Constitution would not for the time being seek to provide for the internal

constitution of the State; and stated accordingly that Part VI- A of the

Constitution would not apply to the State of Jammu and Kashmir.

The article had, however, to deal with the status of the Jammu and
Kashmir State as a unit of the Indian Union, and to provide for the legislative
authority of Parliament and the executive authority of the Union Government
in relation to the State. Broadly, these powers were governed by the

Instrument of Accession of the State and related to the three main subjects

of defence, foreign affairs and communications. The article therefore provided
that the power of Parliament to make laws for the State would be limited
to those matters in the Union List and the Concurrent List which

in consultation with the Government of the State, are declared by the
President to correspond to matters specified in the Instrument of
Accession governing the accession of the State to the Dominion of India
as the matters with respect to which the Dominion Legislature may make
laws for that State.

It was not the intention that the power of the Union Parliament should
be “frozen” in regard to the subjects mentioned in the Instrument of
Accession, and there was a further clause in the article which made the
powers of the Union Legislature more flexible. This clause enabled Parliament
to make laws for the State on other matters as well, but these matters had
to be specified in an order to be made by the President with the concurrence
of the Government of the State.

In the light of this delimitation of the powers of Parliament it was further
provided that such of the provisions of the Constitution (other than article 1
which applied automatically) would apply in relation to the State subject
to such exceptions and modifications as the President might by order specify.

All these provisions were to be of a temporary character, and the article
contained a further clause that when the Constituent Assembly of the State
had met and taken its decision, both on the constitution of the State
and on the range of federal jurisdiction over the State, the President might
on the recommendation of the Assembly issue an order that the whole of
article 306-A would cease to be operative, or would be operative subject to
such exceptions and modifications as might be specified by the President
in the order. When this was done it was contemplated that the position of
the Jammu and Kashmir State would also correspond as closely as possible
to that of the other States in the Indian Union.

After Gopalaswami Ayyangar had explained the scope and purpose of
the special article on Kashmir it was adopted by the Assembly without much
discussion; and at the revision stage it was numbered 370.

554

FRAMING OF INDIA’S CONSTITUHON

NOTE ON AMENDMENTS .

P€ir/' F// .' The Constitution (Seventh Amendment) Act, 1956, ■ divided the
territory of India into States and Union Territories. The category of States
known as Part B States was abolished and accordingly Part VII of the
Constitution relating to such States was deleted.

STATEMENTS

{See page 533 supra)

Statement showing Area and Population of States which merged with
Provinces of India

No. Date of Names of States No. Province with Areas in Popula-

merger of which sq. miles tion in

States merged thousands

1 2 3 4 5 6 7

1 1-1-48 Athgarh,Athmalik,Bamra,

Baramba, Baiidh, Bonai
Daspalla, Dhenkanal,
Gangpur, Hindol,
Kalahandi, Keonjhar,
Khandpara, Narsingpur,
Nayagarh, Niligiri, Pal
Lahara, Patna, Raira-
khol, Rampur, Sonepur,
Talchar, Tigiria.

2 i-i-48 Bastar, Changbhakar,

Chfauikhadan, Jashpur,
Kankar, Kawardha,
Khairagarh, Korea,

Nandgaon, Raigarh, Sakti,
Sarangarh, Surguja,

Udaipur.

1*2-48

Makrai . . . .

23-2-48

Loharu ....

23-248

Banganapalle -

3-3-48

Pudukkottai . . .

3-3-48

Dujana .

8 .

8-3-48

Akalkot, Aundh, Bhor,
Jamkhandi, Jath, Kurun-

dwad (Junior), Kurund-
wad (Senior), Mudhol,
Ramdurg, SangH, Janji-
ra, Phaltan, Savanur,
Savantwadi, Wadi Jagir,
Miraj (Senior), Miraj
(Junior).

23 Orissa . 23,687 4,048

14 C.P. &Berar 31,598/ 2,820

Do.

151

East Punjab

226

Madras

259 ■

..■45

Do.

■ 1,185 ■

' . 438

East Punjab

91 '

’ '■ 31

Bombay

7,651, "

I,693:'

THE INDIAN STATES

■ 555 '

", .,:9

7-4-48

Patandi .■

East Punjab

'53

,1.0

10-6-48

The 17 full jurisdictional
Gujarat States of Bala-
sinor, Bansda, Baria,

Cambay, Chhota Udaipur,
Dharampur, Jawhar,

Lunawada, Rajpipla,

SaPhin, Sant, Idar,

Radhanpur, Vijayanagar,
Palanpur, Jambliugodha,
Surgana and non-jurisdic-
tional thanas, estates and
talukas of Gujarat.

144

Bombay

17,680

2,624.

18-5-48

Seraikella, Kharsawan

Bihar

623

205

6-11-48

Danta ....

Bombay

347

1-1-49

Mayurbhanj .

Orissa

4,034

■991

5-1-49

Sirohi* ....

Bombay

1,994

239

1-3-49

Kolhapur

Do.

3,219

1,092

1-549

Baroda ....

Do.

8,236

2,855

1-4-49

Sandur ....

Madras

158

. 1.8-49

Tehri-Garhwal . .

U.P. .

4,516

397

15-10-49

Banaras .

Do.

866

451

1-12-49

Rampur . . .

Do. ■ ■

894

477

1-1-50

Cooch Behar .

West Bengal

1,321

641

Total

216

1,08,739

19,158

'^‘Since partitioned between Bombay and

Rajasthan.

Statement showing Area and Population of States constituting
Centrally Administered Areas

■Hp.. :■

Date '^of
Merger

Names of States

No. of Name of
States area

Areas in
sq. miles

Population
in thou-
sands

■1

: 5'

.,'7

15-4-48

The Punjab Hill States
of Bhagal,Baghat, Balsan,
Bashahr, Bhajji, Bija,
Darkotij Dhami, Jubbal,
Keonthal, Kumharsain,

Himachal Pra
desh.

. 10,600

935

Kunihar, Kuthar,Mahldg,
Sangri, Mangal, Sirmur,
TliarocIi,Ciiainba, Mandi,
and Snket.

"556

FRAMING OF INDIANS CONSTITUTION

1-6-4S

Kutch ....

Kutch

8,461

501

;■ : 3 ''

, 12-10-48

Bilaspur . ,

Bilaspur

453

110

■ ' 4'

1-6-49

Bhopal ....

Bhopal

6,921

785

15-10-49

Tripura ,

Tripura

4,049

513

15-10-49

Manipur

8,620

512

1-1-50

Ajaigarh, BaonijBaraundha,
Bijawar, ^ Chhatarpur,

Vindhya Pra-
desh.

24,600

3,569

Charkhari, Oatia,Maihar,
Nagod, Orchha, Panna,
Rewa, Samthar, Alipura,
Banka Pahari, Beri^Bhai-
saiindha, Bihat, Bijna,
Dhurwai, Gaurihar, Gar-
raulijaso, Jigni,Kamta-
Rajaula, Khaniadhana,
Kothi, Lugasi,Naigawan-
Rebai, Pahara, Pal-
dso (Nayagaom), Sarila,
Sobawal, Taraon and
Tori«Fatehpur. ^

Total 61 ^ , 63,704 6,925

III

Statement showing Area and Population of States constituting Unions

No. Date of
merger

Names of States

No.

States

Name of
Union

Areas in
sq, miles

Population
in thou-
sands

3 .

I 15-2-48 222 Units including tbs 222 Sauraihtra . 21,062 3,556

jurisdictional States of
Nawanagar, Bhavnagar,

Porbandar, Dhran-
gadhra, Morvi, Gondal,

Jafrabad, Rajkot, Wan-
kaner, Palitana, Dhrol,

Chuda, Limbdi, Wadhwan,

Lakhtar, Sayla, Vala,

Junagadb, Manavadar,

Jasdan, Amarnagar (Thana
Devil), Yadia, Lathi, Mull,

Bajana, Virpur, Maliya,

Kotda-Sangani, Jetpur,

Bilkha, Patdi and Khirasra.

THE INDIAN STATES

557

1 2 3

2 7-44$ Jodhpur, Jaipur, Bikaner,

Jaisaimer, Alwar, Bharat-
pur, Dhoipur, Karauii,
Banswara, Bundi, Dun-
garpur, Jhalawar, Kishen-
garh, Kotah, Partabgarh,
Shahpura, Tonk, and
Udaipur.

3 15-6-48 Alirajpur, Barwani, Dewas

(Senior), Dewas (Junior),
Dhar, Gwalior, Indore,
Jaora, Jhabua, Khilchi-
pur, Narsingarh, Rajgarh,
Ratiam, SaiTana,Sitamau,
Jobat , Kathiawara,
Kurwai, Mathwar, Piplo-
da, Muhammad garb, Pa-^
thari and the Bhumia
Estates of Ninikhera,
Jamnia and Rajgarh.

4 20-8-48 Patiaia, Kapurthala, Maier-

Kotla, Faridkot, Nabha,
Jind, Nalagarhand Kalsia.

3 1-7-49 Travancore and Cochin .

Total

4 5 6 , . 1

18 Ri^jasthan 1,28,424 I3,0'S5

25 Madhya Bha- 46,710 7,141

rat.

Patiala and East 10,999

3,424

Punjab States

Union.

Travancore- 9,155

7,493

Cochin.

552

3 , 87,893

34,679

THE UNION TERRITORIES

Ax THE TIME of India’s achievement of independence; there were scattered
over India six small areas administered directly by the Central Government
through Chief Commissioners — Delhi, Ajmer-Merwara, Coorg, British
Baluchistan, the Andaman and Nicobar Islands and Panth Piploda. The
position of these “Chief Commissioners’ Provinces” was in many respects
peculiar. Because of the smallness of their size, they could not — except in
the case of Coorg which had a Legislative Council of some kind— share in
the system of representative government provided for the Governors’
Provinces: and for reasons historical and political they could not be
merged in the neighbouring areas. Delhi was a small area which, in 1912,
was separated from the Punjab with the sole object of providing , the
Government of India with a seat free from the dominating influence of any
Provincial Government. Ajmer-Merwara was an enclave of “British"
India lying within the broad expanse of Indian State territory comprising
Rajputana, too small in area to constitute a separate Province and tco far
away from any British Indian Province to make amalgamation feasible.

Coorg, comprising an area of 1,580 square miles, was annexed in 1834
from its rulers on accoimt of alleged mis-govemment. The “Coorgis” or the
“Kodagus”, though a minority of the population of the area, were
considered from time immemorial to be lords of the soil, with a language,
culture, national dress and land tenure system of their own : and in
accordance with their wishes the area was treated as a separate unit with
a Council which had deliberative, legislative and interrogatory powers. The
Andaman and Nicobar Islands formed a group in the middle of the Bay
of Bengal whose indigenous people were more backward than many tribes
in India. These islands were formerly used as a penal settlement, but this
practice was abolished in 1921 and it was decided to develop the area as
a free colony’. Panth Piploda constituted a group of ten villages in Malwa
in Central India, surrounded by Indian State territory. When it came into
British hands, it was administered by the Resident of Central India. British
Baluchistan was a small part of the mountainous and arid area of Baluchistan
in tlie west of India — the rest of the area being occupied by the Indian State
of Ealat and certain tribal territory.

The Government of India Act, 1935, provided that these Chief
Commissioners’ Provinces should be directly administered from the Centre

Hndian Statutory Commission (Simon) Report (1930), Vol. I, paras 367-70.

THE UNION TERRITORIES

559

“by the Governor-General acting to such extent as he thinks fit through a
Chief Commissioner to be appointed by him in his discretion”. The
administration of British Baluchistan being closely linked with external
affairs was vested in the Governor-General in his discretion ; and since
this Province and the Andaman and Nicobar Islands were extremely
backward areas, power to make regulations for these two regions was
conferred on the Central Government. The ccnstitution, powers and
functions of the Coorg Legislative Council were also kept intact. With
these reservations the administration of these areas was retained as a
responsibility of the Central Government’.

The Constitutional Adviser to the Constituent Assembly dealt with these
areas in his memorandum of May 30, 1947, on the model Provincial
Constitution. He did not suggest any change in their status as centrally
administered areas : nor did he recommend the introduction of institutions
of representative government. But the provisions included in the
memorandum gave power to the President, in the administration of these
areas, to utilize the agency of a Chief Commissioner, or the Gcvernor of
a neighbouring Province, or the Ruler of a neighbouring State. B. N. Rau
explained the need for these alternative arrangements with reference to the
view expressed about Coorg : some people frcm Coorg had expressed a
desire that Coorg should be administered as if it were part of the Province
of Madras and others as if it were part of Mysore State.

The Constitutional Adviser also included a clause enabling the President
by order to create or continue for any of these areas a local Legislature
and/or a Council of Advisers. Thus the political advance of these areas
was left to the Union Government’.

In their joint memorandum on the principles of the Union Constitution,
Gopalaswami Ayyangar and Alladi Krishnaswami Ayyar proposed that
while Baluchistan should be a full-fledged Province with a Legislature of
its own, the other areas should be administered by an officer appointed by
the Central Government ; they left it to Parliament to make special
provision for the establishment of local Legislatures in these areas’.

The Provincial Constitution Committee met on June 9, 1947. By this
time it was clear that British Baluchistan would be part of Pakistan and
consequently cease to be the concern of the Indian Constituent Assembly.
The committee decided tc refer the question of the other Chief
Commissioners’ Provinces to the Union Constitution Committee. The
latter recommended that as an interim measure these areas should continue
to be administered by the Centre as under the 1935 Act; any change in this
system could be considered subsequently. This recommendation was
included in the committee’s report of July 4, 1947 ; but at the joint meeting

'Govt, of India Act, 1935, sections 94-7.

^Select Documents II, 21(ii), p. 639.

'‘Ibid., II, 15(vi), pp. 548-9.

560

FRAMING OF INDU’S CONSTITUTION

of the Union and Provincial Constituticn Committees held on July 18, 1947,
it was agreed that two of the members, namely, Deshbandhu Gupta and
C, M. Poonacha — ^respectively representing the Chief Commissioners’
Provinces of Delhi and Coorg — could raise in the Assembly the question of
responsible government for. these areas*. Accordingly, on July 30, 1947,
during the consideration of the Report of the Union Ccostitution Committee
in the Constituent Assembly, Deshbandhu Gupta moved an amendment
suggesting the setting up of a committee to consider and report on suitable
constitutional changes in the administrative systems c€ the Chief
Commissioners’ Provinces sc as to accord with the changed conditions in
the country and to give them their due place in the democratic constitution
of free India. This proposal was unanimously accepted by the Assembly^.
The committee appointed by the President of the Assembly in pursuance
of this resolution consisted of Pattabhi Sitaramayya as Chairman and
N. Gopalaswami Ayyangar, K. Santhanam, Deshbandhu Gupta (from
Delhi), C. M. Poonacha (from Coorg) and Mukut Bihari Lai Bhargava
(from Ajmer-Merwara) as members. It held three meetings during August
and September, 1947, and submitted its report on October 21, 1947. Before
formulating its recommendations, the committee surveyed the position of
the five centrally administered areas, viz-, Delhi, Ajmer-Merwara, Coorg,
the Andaman and Nicobar Islands and Panth Piploda’ vrith respect to
their gecgraphical position, financial condition and the working of the
existing system of government. It decided that Panth Piploda should, in
view of its small size and isolated position, form part of Ajmer-Merwara;
that the Andaman and 'Nicobar Islands should continue to be administered
by the Centre and should be a Chief Commissicoer’s Province ; and that
Coorg, Ajmer-Merwara and Delhi should be designated as Lieutenant
Governors’ Provinces.

■ When considering the appropriate set-up for Delhi, Coorg and Ajmer-
Merwara, the committee had before it notes and memoranda on the
existing political and administrative set-up of Delhi and Coorg and on the
constitutional and administrative arrangements in respect of the other
federal capitals like Washington (U.S.A.) and Canberra (Australia). There
was also a memorandum by N. Gopalaswami Ayyangar on the future
constitution of the Chief Commissioners’ Provinces, or the minor Provinces,
as he proposed to call them. This memcaandum formed the basis of

’Provincial Constitution Committee Minutes, June 9, 1947; Union Constitution
Committee Minutes, June 11, 1947; Report of the Union Constitution Committee, July
4, 1947; Memorandum, Part VII, “Directty Administered Areas”, clause 1; and Minutes
of the joint meeting of the Union and Provincial Constitution Committees, July 18.
1947. Select Documents II, 22, 16, 18 and 19, pp. 650, 560, 585, 614,

2C. ,4. PeA, Vol. IV, pp. 998-1004.

^Select Documents III. 3(i), (iO and (iii), pp. 237-43, Notes on Washington and
Canberra not printed.

561

:the'' -union tereitories

discussion at the- second' and third meetings of the comiiiittee; in fact, the
principles suggested therein were largely accepted. The committee agreed
that, (a) the Centre must have a special responsibility for the good government
and financial solvency of these Provinces; and (b) in view of the .smallness
of the areas and .the scantiness of their resources, the need for Central
assistance would continue for improving the .standard of their administration
to the level of that of the major Provinces.

On Gopalaswami Ayyangar’s suggestion the committee considered the
question whether, in the case of Delhi Province, the cities of Old and New
Delhi should not be separated from the rest of the area and placed directly
under the Federal Government and whether the rest of the area could not
conveniently be added to East Punjab or divided between East Punjab and
the United Provinces. The committee took note of the desire of the
Government of India to have a separate area for the seat of the capital of
the Federation and recognized the special importance of Delhi as such, but
it was opposed to the people being deprived of the right of self-government
enjoyed by the rest of their countrymen living in the smallest of villages.
Accordingly, ihe committee decided to keep the Province of Delhi intact
and on a par with Ajmer-Merwara and Coorg, with a responsible
government, subject to certain special powers to be given to the Centre.
N/Among the more important general recom mend ations made by the
committee were that each of these three Provinces should have an elected
Legislature functioning like other Provincial Legislatures, except that the
President’s assent or approval would be essential for all Provincial laws
and the budget; the Federal Legislature would have concurrent powers of
legislation in respect of the subjects included in the Provincial Legislative
List ; each of these Provinces would function under a Lieutenant Governor
to be appointed by the President ; and each of these Provinces would
normally be administered by a Council of Ministers responsible to the
Legislature, as in other Provinces, except that any difference of opinion on
an important matter between the Lieutenant Governor and the Ministry
would be referred to the President for a final decisioilf In regard to the
last point there was considerable difference of opinion in the committee.
Gopalaswami Ayyangar suggested that the Council of Ministers should be
collectively responsible to the Legislature and chosen in the same manner
as in the major Provinces with the only difference that the head of the
Province should be subject to the President’s control in the matter of
choosing his MinisterST^ The alternative scheme suggested by K. Santhanam
was on the model of the South African Constitution in which the members
of the Executive Council were elected by the Legislature and functioned as
an irremovable executive for the full term of the Legislature, The
committee discussed at great length the system of executive government
under the two schemes and their implications ; and eventually it unanimously
agreed to adopt Gopalaswami Ayyangar’s scheme.

562

FRAMING OF INDIA’S CONSTITimON

Mukut Bihari Lai Bhargava and C. M. Poonacha — representing Ajmer-
Merwara and Coorg respectively— appended an additional note in
regard to the future of these areas. The note emphasized that the special
problems arising out of the smallness, geographical position and scantiness
of resources of these areas might at no distant future necessitate the
amalgamation of each of these areas with a contiguous imit ; and that there
should for that reason be a specific provision in the Constitution to make
this possible after ascertaining the wishes of the people concemed\

While the Pattabhi Sitaramayya Committee was still continuing its
labours for evolving a suitable constitutional set-up for the centrally
administered areas, '^he Constitutional Adviser, B. N. Rau, issued on
October 7, 1947, the Ehraft Constitution as prepared by him. The Draft
could not take into consideration the views of the committee. It contained
three provisions, namely, clauses 176 to 178, in regard to the Chief
Commissioners’ Provinces, more or less on the lines of the corresponding
provisions in the 1935 Act. Clause 176, enumerating the five Chief
Commissioners’ Provinces, provided that they would be administered by
the President acting, to such extent as h'^ deemed fit, through a Chief
Commissioner to be appointed by him. Qause 177 empowered the
President to make regulations for the peace and good government of the
Andaman and Nicobar Islands. Clause 178 sought to continue the
existing financial arrangements in respect of the revenues and expenses of
Coorg and the existing constitution, powers and functions of the Coorg
Legislative Council. The Constitutional Adviser made it clear that
clauses 176 to 179 would require revision in the light of the recommendations
of the committee’.

ythe Drafting Committee considered the problem of these areas in the
light of the recommendations of the Committee on the Chief Commissioners’
Provinces. the specific question of Delhi, the Drafting Committee
differed radically from the view that Delhi should have a provincial
administration with a Lieutenant Governor and a Council of Ministers.'^
The committee pointed out that in the United States of America and in
Australia the respective federal legislatures exercised exclusive powers in
respect of the seat of government ; and it was of the opinion that Delhi, as
the capital of India, could not be placed under local administration. A
more flexible and comprehensive plan than that suggested by the Chief
Commissioners’ Provinces Committee was therefcce necessary.

'Minutes of the Committee on Chief Commissioners’ Provinces, August 21, 1947,
September 1, 1947; Notes and memoranda circulated to the members of the committee,
see particularly Gopalaswami Ayyangar’s memorandum on the Future Constitution of
Chief Commissioners’ Provinces, September 1, 1947; and Report of the ad hoc
Committee on Chief Commissioners’ Provinces, October 21, 1947. Select Documents
m, 3, pp. 237-52.

“Draft Constitutipn, October 1947^ clauses 176-8. Select Documents JR, I(i), pp. 73-4.

THE UNION TEMUrORIES

The scheme adopted , by the Drafting Committee was . to divide : these
areas into two categories. In one category it included the Andaman and
Nicobar Islands which, according to the recommendations of the Committee'
were to be governed through a Chief . Co'mmissioner without any
representative institutions. These islands were placed in a separate part
(Part IV) of the First Schedule. Article 215 dealing with them provided
that they, as well as any other territory comprised within the territory of
India but not included in the schedule, would be administered by the Prmdent
through a Chief Commissioner or other authority to be appointed by him.
This was in accordance with the specific recommendation about the
.Andaman and Nicobar Islands made by the Committee on Chief
Commissioners' Provinces.

vRegarding the other three areas, the Drafting Committee placed them
in Part II of the First Schedule, and in articles 212 to 214, made flexible
provisions about their governance. Articl^„212 stated that these States
would be administered by the President acting to such extent as he thought
fit through a Chief Commissioner or a Lieutenant Governor or through
the Governor or Ruler of a neighbouring State. Article 213 empowered
the President by order to “create or continue” for any such State a local
Legislature or a Council cf Advisers or both with such constitution, powers
and functions, in each case, as might be specified in the order.^ As the
Chairman of the Drafting Committee observed :

What is to be done in the case of a particular area is left to the President
to prescribe by order ; he will, of course, in this, as in other matters, act
on the advice of responsible Ministers. He may, if so advised, have
a Lieutenant-Governor in Delhi ; he may, again if so advised,
administer Coorg either through the Governor of Madras or through the
Ruler of Mysore after ascertaining the wishes of the people of Coorg. He
may also by order create a local Legislature or a Council of Advisers with
such constitution, powers and functions, in each case, as may be specified
in the order. This seems to the Drafting Committee to be a flexible plan
which can be adjusted to the diverse requirements of the areas concerned\
The Drafting Committee also included among these provisions a
proposal regarding the Indian States. In February 1948, when the Report
of the Drafting Committee was presented, the process of the integration
of States was just getting under way. By January 1, 1948, twenty-three
States in Orissa and fourteen States in the Central Provinces and Berar
(subsequently to be renamed Madhya Pradesh) had ceded full administrative
jurisdiction to the Dominion Government of India ; and under the directions
issued by that Government the administration of these States was made over

^Drafting Committee Minutes, January 26, 1948 and Draft Constitution, Ambedkar’s
forwarding letter to the President of the Constituent Assembly. February 21, 1948,
para 13, articles 212-5, and footnotes to article 212. Seiect Documents III, 5 and 6,
pp. 444, 514-5, 597,

564

FRAMING OF; INDIA’S CONSTITUTION

to the respective Provincial Governments. The Drafting Committee did
not make any comprehensive attempt to deal with Indian States as a whole
at this stage, first because the picture in relation to them was not clear and
secondly because the internal constitution of these States was a matter which
at the time was outside the jurisdiction of the Constituent Assembly. But
making an attempt to fit these “merged” States in the constitutional
framework of India, the Drafting Committee suggested;

The Indian States (such as those of the Orissa group) which have ceded
full and exclusive authority, jurisdiction and powers to the Central
Government may be administered exactly as if they were centrally
i administered areas.

Provision for this purpose was included in article 212(2) of the Draft
Constitution. Subsequent events changed the whole picture of the Indian
States and this clause was therefore omitted and only those areas which
were in fact governed through Chief Commissioners were included in Part 11
of &e First Schedule’.

'Tme Special Committee considered the problem of the centrally
administered areas in its meetings held on April 10 and 11, 1948. The
general policy which the committee wished to adopt was that as far as
possible there should be no centrally administered areas except for defence
or strategic purposes. Nevertheless, while laying this down as a general
principle, the committee realized that there would be several areas directly
governed by the Centre ; and accordingly it added a rider that if in fact
such areas remained, they should be provided with the largest measure of
autonomy after ascertaining the wishes of the people, .‘dealing with Delhi,
Ajmer-Merwara and Coorg, the committee wanted that alternative draft
provisions should be prepared on the basis of the recommendations of the
Committee on Chief Commissioners’ Provinces, giving these areas a measure
of autonomy and a democratic set-up. It would be left to the Assembly
itself to decide which set of provisions should be retained in the Constitution.
In accordance with this direction the Drafting Committee prepared an
elaborate set of provisions providing for a Legislature and a Ministry for each
of these areas. The Drafting Committee made it clear however that it did
not agree with these proposals and adhered to its plan of flexible provisions
for these States*.

When the Draft Constitution as settled by the Drafting Committee was
introduced in the Constituent Assembly in November 1948, the
representatives of DeM and Ajmer-Merwara were severely critical of the
Drafting Committee. 'Tteshbandhu Gupta from Delhi made an impassioned
appeal for acceptance of the unanimous recommendations of the Committee
on Chief Commissioners’ Provinces and the introduction of responsible

^See Chapter on Indian States.

Comments and Suggestions on the Draft Constitution, Select Documents IV,
I(i), pp. 254-5, 409-10.

THB UNION TEMITORIES

565

government in Delhi Ajnier-Merwara' and Coorg. The analogy of ' the
Australian and , United States capitals was in his view entirely misconceived.
The , pcpulation of Canberra ■ was only 12,000, less than a small township
near Delhi/ Washington was specially built as a capital' and its' population
was less than a million. On the other hand, Delhi was a commercial and
industrial town with a population of over two million and with a culture
and history going back by a few thousand years. In support of his demand
for a responsible local Government- for Delhi, Deshbandhu Gupta cited
the examples of the capitals of the U.S.S.R. and the Union of South Africa
which had separate provincial administrations of their own\

Mukut Bihari Lai Bhargava from Ajmer observed that the Chief
Commissioner’s Province which he represented — Ajmer-Merwara— had been
an enclave of a bureaucratic and autocratic regime during the EMsh period.
The people of Ajmer wanted territorial integration and , administrative
cohesion of the different Rajputana States into one single unit as soon as
feasible; but til! this came about, Ajmer-Merwara should not be denied
the benefits of a popular and democratic administration. Draft articles 212
to 214 would only perpetuate the existing state of affairs by denying to
the people a hand in the administrative set-up and preventing the
establishment of a responsible Government".

Syed Mohamed Saadulla — ^a member of the Drafting Committee-dealing
with these criticisms, maintained that the Drafting Committee had not
ignored either the recommendations of the Committee on Chief
Commissioners’ Provinces or the demand made on behalf of some of these
Provinces for representative institutions. The problem before the committee
was how to deal with these small areas with great differences among
themselves. The Drafting Committee had actually left open the question
of the set-up for the Chief Commissioners’ Provinces to be decided by the
Constituent Assembly itself. If the Assembly decided that the
recommendations of the ad hoc committee should be accepted, they could
be given effect to by the President by an order ; and the Draft Constitution
contained provision enabling this to be done".

Draft articles 212 to 214 regarding the States included in Part II of the
First Schedule — comprising the centrally administered areas other than the
Andaman and Nicobar Islands — ^were discussed by the Assembly on August
1 and 2, 1949. By this time political developments in India had resulted
in a considerable number of new areas being administered as Chief
Commissioners’ Provinces. The integration of States had resulted in the
establishment of Chief Commissioners’ regimes in Himachal Pradesh (a
Union of twenty-one hill States),, Kutch, and Bhopal (And more such
States were to be formed later.) It was also thought probable that some

^C. /l. DeL, VoL VII, pp. 312-5.

' /

Hbm pp...-390-L ^

566

framikg OF Indians coNSTifunOKf

of the foreign settlements in India like Chandemagore might come over to
India. In order to give some time for the Ehrafting Committee to consider
the adequacy of these provisions to meet these changes, Ambedkar wanted
these articles to be held over ; but on the suggestion of the President of
the Assembly, he agreed to their being discussed. For the purposes of this
discussion the articles as framed by the Drafting Committee formed the basis.
These articles, it may be recalled, continued the existing set-up in these
States for the time being, and gave pow^ to the President to introduce
local Legislatures and Councils of Advisers.

The elaborate alternative draft prepared by the Drafting Committee
setting up Lieutenant Governorships, Legislatures and Councils of Ministers
was not moved, though notice of it had been given by Eteshbandhu Gupta,
the protagonist and champion of responsible government for Delhi. The
reason for this was apparently that given by Jawaharlal Nehru in a brief
speech made on August 1, 1949. Nehru conceded that in normal
circmnstances the recommendations of the Pattabhi Sitaramayya Committee
would have been given effect to but since then there had been vital changes
in the world, in India and in Delhi particularly. (He was probably referring
to the large influx of displaced persons from Pakistan into Delhi.) Again
he referred to the fact that these provisions not only dealt with Delhi but
also with other' areas and added : “It may be that still further areas may
come into our ken.” He gave an indication of the intention of the
Government of India to bring forward a Bill to deal with Delhi, after the
Constituticffl was passed ; but he suggested that owing to the complications
involved, it would be inadvisable to put into the Constitution any precise
form of approach to this question “excepting that something should be
done and leave it open to Parliament to do it”.

This approach found ultimate acceptance but not before several members
had expressed their opinions. Deshbandhu Gupta in a lengthy speech gave
passionate expression to the strong feeling that Delhi was not receiving a
“fair deal”. The position of Delhi was different from that of Coorg and
Ajmer-Merwara. In the case of these States there was a clear indication
that they would sooner or later be merged in the adjoining Provinces : but
Delhi was “a very good unit to be treated independently” and given the
benefits of a responsible government. Deshbandhu Gupta relied however on
the assurances given by Nehru that this would be done and did not press
his amendment.

Several other members spoke on the future of Delhi. Thakurdas
Bhargava and Ranbir Singh felt that the only just and practicable solution
of the problem of Delhi was to separate New Delhi and to integrate the
rest of Delhi with East Punjab— the Province that they represented.

Brajeshwar Prasad, on the other hand, favoured the existing system of
government in the Chief Commissioners’ Provinces and desired no change
in ih& status quo. Any demand for provincial autonomy in tiny areas like

THE UNIOKT TERMTORIES

567

Delhi or Panth Piploda was “ridiculous”. Actually, in his view, there was
place for only one government in India and any more to create more
governments would be a retrograde and suicidal step for the country.

On the articles themselves there was little difference of opinion. Ambedkar
moved two amendments to article 212. The first sought to delete clause (2)
which treated Indian States merged in the Provinces as if they were centrally
administered areas. The second was a formal amendment substituting
the words “through the Government of a neighbouring State” for the words
“through the Governor or Ruler of a neighbouring State”.

'^or draft article 213 providing for the creation or continuance by the
President of local legislatures and Councils of Advisers, Ambedkar moved
an amendment vesting in Parliament (and not in the President) the power
by law to create or continue in any of these States —

(a) a body, whether nominated, elected or partly nominated and partly
elected, to function as a Legislature of the State ; or

(b) a Council of Advisers or Ministers or both with such constitution,
powers and functions in each case, as might be specified in the law.

This amended article was adopted by the Assembly with a formal change.

Ambedkar also moved a new article — 213-A — ^providing for High Court
jmrisdiction in these areas. The position at the time was that the Madras
High Court was the appellate court for Coorg and the East Punjab High
Court for Delhi, while Ajmer had a Judicial Commissioner. The new
article gave power to Parliament to constitute by law a High Court for
any of these States or to declare any court in a State to be its High Court
or to clothe the High Court of a neighbouring State with the necessary
jurisdiction and powers. It also provided that provincial High Courts
already exercising jurisdiction, like the Madras Court over. Coorg and the
East Punjab Court over Delhi, would continue to exercise such jurisdiction.

These were formal provisions and adopted without discussion".'/

Part II of the First Schedule, enumerating the centrally administered
States, was considered by the Assembly on October 14, 1949“. As a result
of the integration of Slates, the list had now become larger and included,
in addition to Delhi, Ajmer and Coorg, the States of Bhopal, Bilaspur,
Cooch-Behar, Himachal Bradesh, Kutch, Manipur, Rampur and Tripura;
the group of ten villages constituting Panth Piploda was included in the
State of Madhya Bharat. the revision stage the schedule enumerating
these States was altered to Part C and the relevant articles numbered as
articles 239 to 242."^ By this time Rampur had merged in Uttar Pradesh
and was therefore omitted from the list. After the adoption of the
Constitution and before January 26, 1950, Cooch-Behar was merged in
West Bengal and ceased to be a centrally administered area; while Vindhya

'C. A. rieL. Vol. IX, pp. 65-102.

Hbid., \o\. X, pp. 287 ff.

568

FRAMING OF INDIA’S CONSTitUTlON

Pradesh which was a Part B State under a Rajpramukh became a centrally
administered area. 'iThe necessary changes to efiEect these were made by
an order of the President. Thus on January 26, 1950, the States included
in Part C of the First Schedule were: Ajmer, Bhopal, Bilaspur, Coorg,
Delhi, Himachal Pradesh, Kutch, Manipur, Tripura and Vindhya Pradesh."'^

The provisions regarding the Andaman and Nicobar Islands, territories in
Part IV cf the First Schedule (the Constitution called them “territories” in
contradistinction to the term “States” used to describe the areas mentioned
in Parts I, II and III) were considered on September 16, 1949 and passed
without much discussion. In the Schedule itself the part was altered to
Part D and the relevant article renumbered as article 243.

NOTE ON AMENDMENTS

Part VIU

^itle : The title “The Union Territories” was substituted for the title
“the States in Part C of Ae First Schedule” by the Constitution (Seventh
Amendment) Act, 1956.'^

Article 239 : This article was replaced by a new article by the Constitution
(Seventh Amendment) Act, 1956. New article 239 provided that,, save as
otherwise provided by Parliament by law, every Union territory would be
administered by the President acting, to such extent as he thought fit,
through an administrator to be appointed by him with such designation
as he might specify. It also added that the President could appoint the
Governor of a State as the administrator of an adjoining Union territory.
In such cases the Governor would exercise his functions as administrator
independently of his Council of Ministers.

New article 239-A empowered Parliament to create a Legislature and
a Council of Ministers for the Union Territories of Himachal Pradesh,
Manipur, Tripura, Goa, Daman and Diu and Pondicherry.

Article 240 : Article 240 as amended from time to time enabled the
President to make regulations for the peace, progress and good government
of the Union Territories of (1) the Andaman and Nicobar. Islands, (2) the
Laccadive, Minicoy and Amindivi Islands, (3) Dadra and Nagar Haveli,
(4) Goa, Daman and Diu, and (5) Pondicherry ; but in the case of the last
three Union Territories no such regulation could be made after the
Legislature of the territory, if created by the President, met for the first time.

Article 242: This article, which made certain transitional provisions for
Coorg, was deleted by the Constitution (Seventh Amendment) Act, 1956.

Part IX

Part IX which made provision for territories included in Part D cf the
First Schedule (the Andaman and Nicobar Islands), was deleted by the
Constitution (Seventh Amendment) Act, 1956, consequent on the inclusion
of these islands among the Union Territories in Part VIII.

THE SCHEDULED AND TRIBAL AREAS

For nearly a century under British rule- special laws were applicable' to
what were called “backward areas”. Reporting in 1930, the Indian
Statutory (Simon) Commission mentioned that these backward tracts
(excluding those in Burma) covered an area of over 120,000 square miles
with a population of about eleven million'. They were situated in the
various Provinces of British India, and their backwardness was due to the
fact that they were for the most part inhabited by tribal and aboriginal
populations isolated from the main stream of Indian society. The
character of individual areas and their populations varied widely : a small
group of islands off the west coast — the Laccadives and Minicoy — contained
primitive peoples in a patriarchal stage of civilization. Two areas in the
Punjab — Lahaul and Spiti — did not present any special administrative or
other problems and consisted of a Tibetan population. Elsewhere we had
considerable areas of territory, particularly in the Provinces of Madras,
Bengal, Bihar, Orissa, the Central Provinces and Assam, inhabited by
primitive and tribal populations following their traditional agricultural
and social customs and their own animistic and tribal faiths.

There were two dangers to which subjection to normal laws would have
specially exposed these peoples, and both arose out of the fact that they
were primitive people, simple, unsophisticated and frequently improvident.
There was a risk of their agricultural land passing to the more civilized
section of the population,, and the occupation of the tribals was for the
most part agricultural : and, secondly, they were likely to get into the
“wiles of the moneylender”. The primary aim of government policy then
was to protect them from these two dangers and preserve their tribal
customs ; and this was achieved by prescribing special procedures applicable
to these backward areas. At first individual laws were enacted, applicable
to particular areas, which, among other things, prescribed simple and
elastic forms of judicial and administrative procedures. The Scheduled
Districts Act, enacted in 1874, appears to have been the first measure
adopted to deal with these areas as a class. That Act enabled the executive
to extend any enactment in force in any part of British India to a
“scheduled district” with such modifications as might be considered
necessary. In other words, the executive had power to exclude
these areas from the normal operation of ordinary law and give

meport, 1930, Vol. II, para 127.

570 FMMING of INDIANS CONStltUtlOM

them such protection as they might need^

The Montagu-Ghelmsford Report of 1918 coutamed a brief reference to
these areas : it suggested that the political reforms contemplated for the
rest of India could not apply to these backward areas where the people
were primitive and “‘there was no material on which to found political
institutions”. The typically backward tracts were therefore to be excluded
from the jurisdiction of the reformed Provincial Governments and
administered personally by the heads of the Provinces”. In the Government
of India Act of 1919 these tracts were divided into two categories. Some
areas were considered so backward that they were whoUy excluded from
the scope of the reforms. The effect of this was that neither the Central
nor the Provincial Legislature had power to make laws applicable to these
areas and the power of legislation was vested in the Governor acting with
his Executive Council, the Ministers being excluded from having any share
in the responsibility for the administration of these areas. Proposals for
expenditure in these tracts were not required to be submitted to the vote
of the Legislative Assembly; and no question could be asked and no
subject relating to any of these tracts could be discussed in the Assembly
without the Governor’s sanction.

These arrangements for total exclusion applied only to a small number
of backward areas — the Laccadive Islands and Minicoy in Madras, the
Chittagong hiU tracts in Bengal, the small area of Spiti in the Punjab, and
Angul in Orissa.

A system of modified exclusion was applied to the other backward areas,
the reserved half of the dyarchical government being vested with power
to apply, or to refrain from applying, any new provincial enactment.

All the backward areas except those which were wholly excluded were
represented in the Legislatures, but representation of the tribals as such
was anything but effective. Reporting in 1930, the Simon Commission
referred to the fact that the whole of the Assam backward tracts (covering
50,000 square miles and occupied by half-a-million hill tribesmen) were
represented in the Provincial Legislative by a single nominated member,
who for a considerable pgriod was a Welsh missionary”.

The object of Government policy in relation to these areas, inhabited by
backward, tribal and aboriginal populations, was clearly visualized by the
Simon Commission. Until then the aim had primarily been to give the
primitive inhabitants of these areas security of land tenure, freedom in the
pursuit of their traditional means of livelihood, and a reasonable exercise of
their ancestral customs : not self-determination or rapid political advance,
but experienced and sympathetic handling and protection from economic
subjugation by their neighbours. The Commission realized that perpetual

'^Report, 1930, Vol. I, para 168.

^Report on Indian Constitutional Reforms, 1918, para 199.

1930, Vol. I, paras 167-72.

fHE SCHEDULED AND TRtBAL AREAS

5^1

isolation from the main currents of progress would not be a satisfactory
long-term solution: and that it would be necessary to educate these people
ultimately to become self-reliant. In this direction practically nothing
had been achieved. The Commission observed :

The responsibility of Parliament for the backward tracts will not be
discharged merely by securing to them protection from exploitation and
by preventing those outbreaks which have from time to time occurred
within their borders. The principal duty of the administration is to
educate these peoples to stand on their own feet, and this is a process which
has scarcely begun.

The Commission recognized this problem to be one of considerable
magnitude and complexity. On the one hand it was too large a task to
be left to the efforts of missionary societies and individual officials, since
coordination of activity and adequate funds were required. On the other
hand, the typically backward tract was a deficit area and “no provincial
legislature (was) likely to possess either the will or the means to devote
special attention to its particular requirements”. In these circumstances
the Commission recommended that the responsibility for the backward
classes would be adequately discharged only if it was entrusted to the
Centre. It was recognized that it would not be a practicable arrangement
if centralization of administrative authority in these areas led to a situation
in which these areas would be ^parated from the Provinces of which
they were an integral part: and in order to meet this difficulty the

Commission suggested that even though there would be a central

responsibility, the backward tracts should not be separated from the
Provinces but that the Central Government should use the Governors as
degree of backwardness, it could be laid down by rules how far the

degree of backwardness, it could be laid down by rules how far the

Governor would act in consultation with his Ministers in the discharge of
these agency duties'.

The proposal for centralizing the administration of these areas was
however not adopted in the constitutional reforms of 1935. Under the
Government of India Act of 1935, these backward areas were classified as
excluded areas and partially excluded areas. A small number of excluded
areas — the total extent of these was about 18,600 square miles in Assam
and 10,000 square miles in the rest of India — in the Provinces of Madras,
Bengal, the North-West Frontier Province, the Punjab and Assam, were
placed under the personal rule of the Governor acting in this discretion:
and while partially excluded areas were within the field of ministerial
responsibility, the Governors exercised a special responsibility in respect of
the administration of these areas ; and they had the power in their
individual judgment to overrule their Ministers if they thought fit to do

^Report, 1930, VoL II, paras !2?-34.

572

FRAMING OF INDIA’S CONSTITUTION

SO. ■ No Act > of ' the Federal or Provincial Legislature would apply to any
of these areas : but the Governors had the authority to apply such Acts
with such modifications as they considered necessary'.

In addition to these excluded and partially excluded areas, there were
in the territory of India certain ‘‘tribal areas”, which were defined in the
Government of India Act, 1935, as “areas along the frontiers of India or
in Baluchistan which are not part of British India or of Burma of of any
Indian State or of any foreign State”". The position of these areas was even
more peculiar. In terms of the definition they did not form part of the
territory of British India and neither the Parliament of Britain nor the
Legisiatures of British India claimed or exercised any direct legislative
powers over these areas. The powers exercisable in these areas were
described as arising out of “treaty, grant, usage^ sufferance or otherwise”
and the Act of 1935 contained a specific authorization enabling these
powers to be exercised as part of the executive authority of the Central
Government, by the Governor-General acting in his discretion, and therefore
outside the area of responsibility of the Ministry^ The actual extent of
administrative authority exercised in each of these tribal areas differed. In
the North-West Frontier no organized magistracy existed, and there was
no collection of revenue; and beyond the loci of military roads and railways
(over which full authority and jurisdiction was exercised) the Path an was
allowed to live his own tribal life without official interference ; but the
peace and order of the North-West Frontier Province, the guarding of the
military roads and railways and the safety of the caravans using them for
trade, required the management of the tribes in such a manner that they
not only refrained from committing crimes in the settled districts but also
where crimes were actually committed, the culprits were traced and
punished. All these became, in the words of the Simon Commission,
problems of foreign and diplomatic policy and of imperial defence. In
Baluchistan the tribal or “Agency” areas were for the most part brought
under more or less the same administrative arrangements as the territory of
British BaluchistaiT. In the Assam tribal areas, administration had yet to
be established over large tracts, and the tribes freed from feuds and raids
among themselves and from the encroachment and oppression of Tibetan
tax collectors®.

The Cabinet Mission’s statement of May 16, 1946, mentioned the
excluded and partially excluded areas and the tribal areas as requiring the
special attenticn ' of the Constituent Assembly. The Advisory Committee

^Government of India Act, 1935, sections 91 and 92.

W/U; section 311(1).

. Hbid., sections 8 and 9.

^Indian Statutory (Simon) Commission Report, VoL 1, paras 361-6.

^Report of the North East Frontier (Assam) Tribal & Excluded Areas
Sub-Gommlttee, Select Documents III, 7(u), p. 690,

THE:'3CHEDULEI>. ANP.TKIBAL AEEAS

57a

on ; Fundamental : Rights and Minorities, to be set up at the preliminary
meeting of the Assembly, was to contain due representation of all the
interests affected; and one of its- functions was to report to the Constituent
Assembly on a scheme for the administration of tribal and excluded areas'.
At uts nieeting on February 27 , 1947 , the Advisory Committee set up three
sub-committees— one to consider the , tribal and excluded and partially
excluded areas in Assam: one to consider the tribal areas in the North-
West Frontier Province and Baluchistan : and the. third 'sub-committee to
consider the position of excluded and partially excluded areas in the
Provinces other than Assam^

The political consequence of the British Government’s statement of
June 3, 1947, was that, following a referendum, the North-West Frontier
Province became part of the territory of the Dominion of Pakistan : and
as a result of a decision taken at a joint meeting of the Shahi jirga (the
most important of the tribal councils) and the non-official members of
the Quetta Municipality, British Baluchistan also became part cf Pakistan.
As a result of these decisions the tribal areas in the North-West Frontier
region became a concern of that Dominion ; and the sub-committee on the
tribal areas in the North-West Frontier Province and Baluchistan was not
therefore called upon to function on behalf of the Constituent Assembly
of India.

Die Sub-Committee on Assam submitted its report on July 28, 1947, to
the Chairman of the Advisory Committee. The other Sub-Committee on
the Excluded and Partially Excluded Areas in Provinces other than Assam
submitted its report in two instalments. The interim report was dated
August 18, 1947, and related to the Provinces of Madras, Bombay, Bengal,
the Central Provinces and Orissa. Die final report related to the backward
areas in Bihar, the United Provinces and Punjab and was submitted in
September, 1947".

On the suggestion of the Chairman of the Advisory Committee on
Fundamental Rights, Minorities and Tribal and Excluded Areas, a joint
meeting of the two sub-committees was held in August, 1947. The

. ^Cabinet Mission Statement, para" 20, Select Documents I, 48(i), p. 216..

^Minutes, Select Documents II, 4(i), p. 65. The composition of these siib-com,mlttee 3
was:

North East Frontier {Assam) Triha! and Excluded Areas Sub'Committee

(1) Gopifiatli Bardoloi; (2) J. J. M, Nichols-Roy; (3) R, N. Brahma; (4) Mayang
Nokclm; (5) A. V. Thakkar.

North-West Frontier Tribal Areas Sub-Committee

(,!). Khan .Abdul Ghaffar Khan; (2) Khan Abdul Samad K.han; ;(3) Mehr Chand

. Khanna. .

Excluded' and 'FartiaHy Excluded^ Areas (other than. 'Assam) Sub-Conumttee
■ (!) A. V. Thakkar; ' (2)' laipal Singh; (3) D. N. Samanta; (4) P. B. Shah; (5) Jagjivan

;■ ";Ram;'(6)'P.C. Ghosh; (7) R..K. Bose. .

. ^Select ■Documents III, 7, pp; 681-779.

574

FRAMING OF INDIA’S CONSTITUTION

problem of the backward areas was clearly summed up by this joint
meeting :

The areas inhabited by the tribes, whether in Assam or elsewhere, are
difficult of access, highly malarial and infested also in some cases by
other diseases like yaws and venereal disease and lacking in such civiUzing
facilities as roads, schools, dispensaries and water supply. The tribes
themselves are for the most part extremely simple people who can be
and are exploited with ease by plainsfolk, resulting in the passage of land
formerly cultivated by them to money-lenders and other erstwhile non-
agriculturists. While a good number of superstitions and even harmful
practices are prevalent among them, the tribes have their own customs
and way of life with institutions like tribal and village panchayats or
councils which are very effective in smoothing village administration. The
sudden disruption of the tribals’ customs and ways by exposure to
the impact of a more complicated and sophisticated manner of life is
capable of doing great harm. Considering past experience and the strong
temptation to take advantage of the tribals’ simplicity and weaknesses, it
is essential to provide statutory safeguards for the protection of the land
which is the mainstay of the aboriginal’s economic life and for his customs
and institutions which, apart from being his own, contain elements of
value.

At the same time both the committees recognized that the ultimate
solution to the problem of backward areas lay in development, not isolation.
They recommended that both in Assam and in the other Provinces it
would not be prudent to leave the responsibility for the development of
these areas in the charge of Provincial Governments with limited inancial
resources and competing claims. The committees therefore made it the
responsibility of the Centre to draw up schemes for the development of
these areas and ensure that they were implemented by the Provinces^

The sub-committee on the excluded and partially excluded areas in the
Provinces other than Assam made recommendations of vital im|X)rtance
regarding the provisions to be made for the protection and advancement of
the tribal people. The terms of reference of the sub-committee required
it to draw up a scheme for the administration of the excluded and partially
excluded areas. As the sub-committee proceeded with its labours, it found
that the excluded and partially excluded areas were *‘well defined areas
populated either predominantly or to a considerable extent by aboriginals” :
but the problem of the tribal population was much more pervasive than
the problem of delimiting certain areas and prescribing a scheme for their
admimstration. The exclusion and partial exclusioii of areas kept in view
the possibility of ‘'obtaining convenient blocks of territory with readily
recognizable boundaries susceptible of special administrative measures”.

^Selea Dommems HI, 7(lvX p, 770-9,

THE SCHEDULH> AND TRIBAL AREAS

575

But these areas did not by any means cover the entire population of
tribal origin and in many cases represented only a comparatively smaU
proportion of the aboriginal population, the rest of them being scattered
over “non-excluded” areas. In these areas, although small concentrations
of the aboriginal population could be distinguished in some of them, this
population was for the most part interspersed with the rest of the
population. The sub-committee felt that its recommendations should not
leave out of consideration such a large population which in many respects
was in a very backward condition’. The sub-committee’s proposals
therefore had a double objective. In the first place, they formulated
recommendations for the delimitation of areas, containing a preponderance
cif aborigines or very backward people which were of suflBcient size to
make possible the application to them of special legislation and which were
susceptible without inconvenience to special administrative treatment. In
addition the sub-committee recommended that the members of the aboriginal
and other backward tribes, whether they lived in these areas or outside,
should be treated “as one whole” as a minority and given special
representation in the Legislatures in proportion to their numberl

The sub-committee on the Assam tribal and excluded areas also made
a reference in its report to the tribal population of Assam living in the
plains. According to the sub-committee there were nearly twice as many
tribals living outside the excluded and tribal areas as there were within
these areas. The sub-committee did not make any specific recommendations
about these people except to remark that they were being gradually
assimilated to the populaticoi of the plains ; that they should for all
practical purposes be treated as a minority ; that measures for the protection
of their lands would be necessary ; and that the question of their
representation and protection should be considered by the Minorities
Sub-Committee’.

Unlike the main provisions of the Constitution, the recommendations of
the two sub-committees were not considered by the Constituent Assembly
in its session of July 1947, when the broad principles of the Constitution
were settled, since, as explained by Ambedkar. they were received too late.
On the suggestion of the Advisory Committee, the Drafting Committee
itself ccmsidered these proposals at the stage of drafting, and suitable
provisions were included in the Draft Constitution of February 1948 on
the basis of the reports of the two sub-committees. The Advisory Committee
accepted all these recommendations and had coly two suggestions of a
minor nature to offer; and it was agreed that these would be moved as
amendments in the Assembly in due course. The reports, which had
already been circulated to members of the Assembly, were formally placed

^Select Documents 111, ?(«!), p. 734.

nbid., p. 774.

’/Wd., Ill, 7(ii), pp. 707-8.

576

FRAMING ' OF' INDIA’S CONSTITUTION'

'before, it' -OH' November 4, 1948, when Ambedkar initiated consideration of
the Draft Constitution',

Adopting the recommendations of the sub-committees, the scheme of the
Draft Constitution' was broadly as follows :

(1) Article 144 relating to the Council of Ministers laid down that in
the States of Bihar, the Central Provinces and Berar (subsequently
renamed Madhya Pradesh) and Orissa there would be a separate
Minister in charge of tribal welfare who might in addition be in
charge of the welfare of the Scheduled Castes^

(2) In the chapter on Part I States (corresponding to the Provinces)
two articles — ^189 and 190— were included on the scheduled and
tribal areas. Article 189 defined these areas. The scheduled areas
were the backward areas in the Provinces of Madras, Bombay, the
United Provinces (subsequently renamed Uttar Pradesh), East Punjab
(subsequently designated Punjab), Bihar, the Central Provinces and
Berar (later called Madhya Pradesh) and Orissa. They were listed
in the Fifth Schedule to the Draft Constitution. The term “tribal
areas” covered the excluded and tribal areas in Assam and were
listed in the Sixth Schedule.

(3) Article 190 provided:

(a) that the provisions of the Fifth Schedule would apply to the
administration and control of the Scheduled Areas and Scheduled
Tribes in the States other than Assam ;

(b) that the provisions of the Sixth Schedule would apply to the
administration of tribal areas in Assam.

(4) In article 255 in the chapter on financial relations between the

, Union and the States, provision was made for capital and recurring

grants from the Centre to the States, particularly the State of Assam,
for the specific purpose of raising the level of administration of the
Scheduled Areas and promoting the welfare ctf the tribal people.

(5) Part XIV containing special provisions relating to minorities made
provision for safeguarding the political rights and providing for the
economic betterment of the Scheduled Tribes. Article 300 included
in this part of the Constitution laid down that the President should
within a period of ten years appoint a Commission to report on the
administration of Scheduled Areas and the welfare of Scheduled
Tribes; and also empowered the Union to give directions to States
as to the drawing up and execution of schemes specified as essential
for the welfare of Scheduled Tribes'.

(6) The Eighth Schedule to the Draft Constitution listed the tribes and
communities which were to be treated as “Scheduled Tribes”.

^For texts of reports see Select Documents III, 7, pp. 683-770.

^Select Documents III, 6, pp. 569, 588, 614-5, 633, 650-62, 670-5.
also Chapter on Minorities.

THE SCHEDULED AND TRIBAL AREAS

577

From the begitining the objectives of the Government’s policy in regard
to the tribes and tribal areas were primarily directed to the preservation of
their social customs from sudden erosion and to safeguarding their
traditional vocations without the danger of their being pauperized by
exploitation by the more sophisticated elements of the population. At the
same time it was recognized that this stage of isolation could not last
indefinitely ; a second and major objective was therefore laid down, that
their educational level and standard of living should be raised in order
that they might in course of time be assimilated with the rest of the
population. From this point of view the sub-committee was of the opinion
that the policy of exclusion and partial exclusion had not yielded much
tangible result in the progress of the aboriginal areas towards the removal
of their backward condition or in their economic and educational betterment.
The sub-committee did not therefore fiind it advisable to abolish the
administrative distinction between the backward areas and the rest of the
country; and it recommended that while certain areas like Sambalpur in
Bihar and Angul in Orissa need no longer be treated differently from
the regularly administered areas, there were other areas which needed a
simplified type of administration to protect the aboriginal people from
exposure to the complicated machinery of the ordinary law courts and
save them from the clutches of the moneylender who took advantage of
their simplicity and illiteracy, deprived them of their agricultural land, and
reduced them to a state of virtual serfdom. The general position, according
to the sub-committee, was that the areas predominantly inhabited by tribal
people should be known as “Scheduled Areas” (the intention being that
these areas should figure in a schedule to a notification) and special
administrative arrangements made in regard to them.

At the same time, having foimd the treatment of exclusion and partial
exclusion to have proved a failure, the sub-committee recommended that
the responsibility for the betterment and welfare of these areas should be
squarely that of the Provincial Governments and that accordingly the
Governors should not have any special reserved or discretionary powers in
regard to these areas. But the ultimate responsibility was to be that of
the Centre, both for drawing up plans for the betterment of these areas
and for providing the necessary finances. In order to ensure that
the requirements of these areas were given full consideration, the sub-
committee recommended that the Constitution should provide for the setting
up in each Province of a body which would keep the Provincial Government
constantly in touch with the needs of the aboriginal tracts in particular
and with the welfare of the tribes in general. This body was to be known
as a Tribes Advisory Council, which it was proposed, should have a
strong representation of the tribal element.

The Tribes Advisory Coundl would primarily advise the government in
regard to the application of laws to the Scheduled Areas : no laws affecting

578

FRAMING OF INDIA’S CONSTITUTION

the following matters would apply if the Tribal Advisory Council
considered such a law unsuitable:

(1) Social matters ; (2) occupation of land, including tenancy laws,
allotment of land and setting apart of land for village purposes;
(3) village management, including the establishment of village
panchayats.

These were the broad recommendations embodied in the Fifth Schedule
to the Draft Coinstitution'. The Scheduled Areas, which were listed in
the schedule, were spread over the States of Madras, Bombay, Bihar, the
Central Provinces and Berar (since renamed Madhya Pradesh), Orissa, the
United Provinces (now Uttar Pradesh) and East Punjab.

The schedule contained two general provisions. The first of these laid
down that the executive power of the State of which a particular area
formed part extended to the Scheduled Areas in that State : and the second
required that State Government to report to the Union Government
annually, or whenever required to do so, regarding the administration of
the Scheduled Areas : and gave power to the Central Government to give
directions to that State as to the administration of these areas.

The provisions regarding the management of Scheduled Areas in individual
States varied to a certain extent and separate provision was made for East
Punjab, the United Provinces and for the other States. In the case of East
Punjab, it was laid down that a Scheduled Areas Advisory Committee
should be set up, two-thirds of whose members would be residents of
the Scheduled Areas in the State. This committee would be charged with
the duty generally to advise the Government of the State on all matters
pertaining to the administration of Scheduled Areas. The Governor (Le.,
the State Government), had power to direct that any Act of Parliament
or of the State Legislature ^ould not apply to a Scheduled Area, and to make
modifications in the application of individual Acts. The State Government
had power also to make regulations prescribing the procedure for the trial
of criminal offences other than those punishable with death, transportation
for life or imprisonment for five years or more, and civil suits and cases
of small pecuniary value : and by such regulations the Governor could
empower headmen or panchayats in the Scheduled Areas to try such cases.
The State Governor had also power to make regulations so as to prohibit
the transfer of land in a Scheduled Area by a member of a Scheduled
Tribe to anyone who was not a member of such a tribe.

The provisions regarding Uttar Pradesh were primarily designed to ensure
that the State Government paid sufficient attention to the development of
Scheduled Areas. Accordingly, in addition to provisions on the lines of
the Punjab, a paragraph was included requiring the State Government to
exhibit separately the estimated receipts and expenditure pertaining to these

^Select Documents III, 6, pp. 650-55.

THE SCHEDULED AND TRIBAL AREAS

579

areas in the annual financial statement to be laid before the Legislature of
the State.

The provisions for the other States were more detailed. In, their case,
the advisory body was known as the Tribes Advisory Council. The
membership of the Tribes Advisory Council in each of the States was to
be between ten and twenty-five, of whom three-fourths were to be elected
representatives of the Scheduled Tribes in the Legislative Assembly of the
State as in the case of the Punjab and the United Provinces ; it was laid
down as the duty of the Tribes Advisory Council generally to advise the
Government on all matters pertaining to the administration of the Scheduled
Areas and the welfare of the tribes. The State Government was statutorily
enjomed to give effect to the advice of the council if it considered that an
Act, whether of Parliament or of the State Legislature, relating to the
following matters, was unsuitable for, or required modification in, its
application to a Scheduled Area :

(a) marriage ; (b) inheritance of property ; (c) social customs of tribes ;
(d) land, including rights of tenants,, allotment of land and reservation
for any purpose ; (e) village administration and village panchayats.

It was made obligatory that the Governor should act according to the
advice of the Tribes Advisory Council on the application of Acts relating
to these matters. He was not bound to accept the advice of the council
on laws relating to other matters. The State Government was also empowered
to make regulations applicable to a Scheduled Area after consulting the
council. As in the case of East Punjab and the United Provinces, such
regulations would make provision for the trial of offences other than those
punishable with death, transportation for life or imprisonment for five years
or more ; such regulations could also provide for the trial of disputes
“other than those arising out of any such laws as may be defined in such
regulations”.

The transfer of land in a Scheduled Area from a tribal to a non-tribal
was forbidden; and the State Government was also prohibited from allotting
State land in a Scheduled Area to non-tribals except in accordance with
rules made after consulting the Tribes Advisory Council. Likewise, if
advised 1^ the council, the Governor was obliged to license moneylending,
prescribing such conditions as were considered necessary ; and the breach
of these conditions would be an offence. In order that public attention
might be focussed on the development work carried out in these areas, the
State Government was required to show separately in its annual financial
statement the revenues and expenditure pertaining to these areas.

These complicated provisions were reconsidered by the Drafting
Committee. The process of integration of States had meanwhile altered
the dimensions of the pffoblem. The Thakkar Sub-Committee was dealing
with a certain number of specified areas in some of the Provinces of what
used to be “British India”. With the integration of States new backward

580

FRAMING OF INDIA’S CONSTHUTION

areas had been added to the existing Provinces and there were also a
considerable number of such areas in the Unions of Indian States for which
the Constitution had to make provision. Besides, the tribes were so
backward that any representation of tribes in Legislatures and other
representative institutions was bound for a long time to be weak : that was
indeed the raison d’etre for the special treatment given to them. To confer
so much legislative and executive power on a Tribes Council as the draft
proposed to do, in complicated matters of law and legal procedure which
it could not properly understand, might far from safeguarding the tribal
population have the opposite effect. The Drafting Committee had long
discussions with the Provincial Governments, and Ambedkar moved some
necessary amendments to these provisions. First, on August 19, 1949. he
moved an amendment deleting articles 189 and 190, which in the Draft
Constitution had been included in Part VI relating to the States
corresponding to the Governors’ Provinces. The provisions contained in
these two articles now formed a new Part VIII-A of the Constitution, and
it was made clear that the provisions in the Fifth Schedule, relating to
Scheduled Areas and Scheduled Tribes, would apply to all areas and tribes
in all the States in Part I or Part III of the Constitution — ^in the States
corresponding to the Governors’ Provinces as well as in those corresponding
to the Indian States’.

Radical changes were also made in the Fifth Schedule; and the new
schedule, with comparatively simpler provisions, was introduced on
September 51 This new schedule retained the substance of the general
provisions laying down that the executive power of a State extended to the
Scheduled Areas in that State; and that the Governor or Ruler of a State
(this designation was later changed to Rajpramukh) having a Scheduled
Alien in it should make a report to the Government of India annually,
or whenever required to do so, on the administration of these areas. The
executive power of the Union was stated as extending to the giving of
directions to the State as to the administration of these areas.

It was also laid down that Tribes Advisory Councils should be set up
in all States having Scheduled Areas: where there were tribes but no
Scheduled Areas, it was left to the President (i.e. the Central Government)
to decide whether a council was necessary. Three-fourths of the members
of Tribes Advisory Councils were to be the representatives of the Scheduled
Tribes in the State Legislative Assembly. It was left to the State Government
to decide whether the council should be consulted on any particular matter.
Likewise it was left to the State Government to decide whether any Act
of Parliament or of the State Legislature required any modification in their

*C7. A. Deb., Vol. IX, pp. 492-5. This part now figures as Part X — ^artids 244.
Article 2 15-A defining Scheduled Areas and Tribal Areas was deleted on October 16,
1949, as complete provision had been included in the Fifth and Sixth Schedules.

Hbid., pp. 965-7.

THE SCHEDULED AND TRIBAL AREAS

581

application to Scheduled Areas and there was no specific requirement that
he should consult the Tribes Advisory Council. The State Government was
empowered to make regulations, especially on the following matters ; (1)
prohibiting or restricting the transfer of land by or among members of
tribes in any Scheduled Area ; (2) regulating the allotment of land to
members of Scheduled Tribes in any such area ; (3) regulating the carrying
on of business as moneylender in any such area. Before making such a
regulation the council would have to be consulted and the approval of the
Union Government obtained.

Thus the role of the Tribes Advisoiy Council was made a purely
consultative one, the responsibility for the welfare of the Scheduled Areas
being squarely that of the State Government subject to the control of the
Centre.

The new schedule made two other material changes. The Ehraft
Constitution of February 1948 had listed the Scheduled Areas in the
Provinces. As Ambedkar pointed out, it now became impossible, because
of the inclusion of Indian States within the ambit of the Constitution, to
know what areas were to be declared as Scheduled Areas in the former
Indian States. For meeting this difficulty as well as to make the provisions
more elastic, the expression “Scheduled Areas” was defined as including
such areas as the President might by order declare to be Scheduled Areas.

By another amendment Ambedkar. sought to give power to Parliament
by a simple Act to amend the provisions of the schedule. Explaining
this, he said that it was no use creating “a state within a state”. It was not
desirable that this kind of special provision under which certain areas
would be excluded from the general operation of the law made by the
State Legislature and Parliament should be stereotyped ; he proposed
therefore that Parliament should have power to amend these provisions by
the ordinary process of law without recourse to the more elaborate procedure
laid down for a constitutional amendment.

There was considerable discussion on these proposals and various points
of view were canvassed. Jaipal Singh from Bihar, a zealous champion of
the interests of the Scheduled Tribes, was the principal critic of the new
schedule. He moved several amendments, but two of his main points were
that the schedule should provide not only for the administration of the
Scheduled Areas but also for the administration and control of the Scheduled
Tribes ; and that the Tribes Advisory Council should be given an effective
voice in the decisions of the Stale Government in the application of laws
to Scheduled Areas and in the promulgation of regulations. Yudhishtir
Misra from the Orissa States moved a separate set of amendments having
more or less the same objective as the amendments suggested by Jaipal Singh.
Brajeshwar Prasad was in favour of the Centre assuming Ml responsibility
for the administration of these areas. He argued ;

What the tribals want is not a council but a guarantee by the Constitution

582

FRAMING OF INDIA’S CONSTITUTION

■ that means of livelihood, free education and free medical facilities shall
be provided for all the tribals.

Since the States were weak in economic reso^urces they would ■ not be in
a position to shoulder this responsibUity and the Centre should therefore
take command of the areas.

Biswanath Das from Orissa took an altogether different line. While
fully recognizing the need for doing everything possible for the betterment
of' the backward sections of the people, he was totally opposed to the whole
concept of Scheduled Tribes and Scheduled Areas as separate entities. He
characterized this as nothing short of creating racial issues in the place of
the communal issues which had resulted in the partition of the
country.

Munshi replied to these criticisms. He pointed out that the “Adivasis”
or tribes were many in number belonging to different ''ethnic, religious and
social groups”. He defined the object of the Drafting Committee’s
proposals :

We want that the Scheduled Tribes in the whole country should be
protected from the destructive impact of races possessing a higher and
more aggressive culture and should be encouraged to develop their own
autonomous life ; at the same time we want them to take a larger part
in the life of the country adopted. They should not be isolated
communities or little republics to be perpetuated for ever. The
amendments which Mr. Jaipal Singh has moved will show that his object
is to maintain them as little unconnected communities which might
develop into different groups from the rest of the country. The result
would be exactly to frustrate the common aim Mr. Jaipal Singh and
ourselves have that these tribes should be absorbed in the national life
of the country.

Munshi turned down as an utter absurdity the proposal that the "Tribal
Advisory Councils should be miniature Senates with power to aid and
advise the Governor in matters falling within the purview of the schedule”.
It would not be possible, he said, for each Tribal Advisory Committee of
small tribes to come to a common conclusion with regard to an elaborate
Act of Parliament as to what provisions should or should not apply.
Tlierefore, he said, the word "consulted” had been put in purposely in place
of "advise”.

After this explanation the amendments moved were rejected or withdrawn
and the amended draft of the Fifth Schedule as proposed by Ambedkar
was. passed\

.The scheme suggested by the sub-committee on the tribal and excluded
areas of Assam was more detailed and designed to confer a considerable
extent of autonomy on the tribal' population through their elected

'A.' Deb.,: Yoi. IX, pp. 965-lOOL

THE SCHEDULED AND TRIBAL AREAS

583

Feprese-ntatives. Commenting on the tribal areas in Assam, the joint report
said :

"The distinguishing feature of the Assam Hills and frontier tracts is the
fact that they are divided into fairly large districts inhabited by single tribes
■ or fairly homogeneous groups of tribes with highly democratic and mutually
exclusive tribal organization and with very little of the plains leaven which
: is so common a feature of the corresponding areas, particularly the partially
excluded areas of other Provinces. The Assam hill districts contain as a
rule upwards of 90% of tribal population whereas unless we isolate ' small
areas this is generally not the case in the other Provinces, The tribal
population in the other Provinces has moreover assimilated to a considerable
extent the life and ways of the plains people and tribal organizations have
in many places completely disintegrated. . . Having been excluded totally
from ministerial jurisdiction and secluded also from the rest of the Province
by the Inner Line System, a parallel to which is not to be found In any
other part of India, the excluded areas have been mostly anthropological
specimens... It is in these conditions that proposals have been made for
the establishment of special local councils which in their separate hill
domains will carry on the administration of tribal law and control the
utilization of the village land and foresth
For purposes of administration the sub-committee divided these areas into
two categories. In the first were included the backward tribal districts
which in the main formed part of Assam ; and the second comprised the
tribal areas which were being administered through the agency of the
Governor of Assam by the Central Government. In the case of the former,
class of areas, the unit of administration was to be the autonomous tribal
district, and there were to be six such districts, the Khasi and Jaintia Hills
District, the Garo Hills District, the Lushai Hills District, the Naga Hills
District, the North Cachar. Sub-Division of the Cachar District, and the
Mikir Hills. For each tribal district the Governor was to set up a district
council, and if there were different tribes inhabiting distinct areas within a
district,, each area or group of areas could be divided into autonomous tribal
regions with regional councils''. A district council was to consist of not
less than twenty and not more than forty members, of whom not less than
three-fourths were to be elected from territorial constituencies on the basis
of adult suffrage ; the intention seems to have been that the regional councils:
should also have a similar composition, though, the leport itself did not
mention the . proportion of seats to be filled by election. The administration
of .the. district, was to be vested in .the district council and.. of a region in
the regional council. •

In the legislative field the' district and regional councils were to be

'. ' ^'Select Documents , III, 7(iv), ■ pp. ■ 77.1-2. ' ' ■ ■ ■ ■ ■

.mid,. Ill, 7(ii),..pp. ;,709-13.'' ,v

584

FRAMING OF INDIA’S CONSTITUTION

empowered to make laws on the following subjects:

(1) the aEotment, occupation or use of land ; (2) the management of
forests other than reserved forests; (3) the use of canals and water,
courses for agriculture; (4) regulation of the practice of “jhum” or
other forms of shifting cultivation; (5) the estabKshment of viEage
or town committees or councils ; (6) the appointment or succession
of chiefs or headmen ; (7) the inheritance of property ; (8) marriage ;
and (9) social customs.

The district councils were also to be given the power to run primary schools,
disi«nsaries, markets, cattle pounds, ferries, fisheries, roads and waterways.

One of the chief fears entertained by the tribals was the danger of being
made paupers by the moneylending and tradmg activities of the more
sophisticated sections of the people; and to avoid this danger the district
councils were to be empowered to regulate moneylending and trade by
non-tribes, impose a system of licensing, and exercise such other control
as they thought fit.

In the field of administration of justice, both the district and the regional
councils were to be empowered to constitute village councils or courts for
the trial of offences other than those which would be punishable with death,
transportation for life or imprisonment for over five years. Courts so set
up could also dispose of suits arising out of laws passed by the Regional
or District Councils as the case might be, in the exercise of their powers.
The power to entertain and hear appeals was vested in the district and
regional councils or in courts constituted by them for the purpose. For
the trial of more serious offences and more important civil disputes the
jffoposal of the sub-committee was that such judicial powers under the
CMminal Procedure Code or the Civil Procedure Code, as might be
appropriate, would be conferred by the State Government on the district
or regional councils, or in courts set up by them. The State Governments
were also authorized to appoint officers and invest them with jurisdiction
to try such offences or disputes.

The sub-committee also proposed that extensive powers should be
conferred on the district and regional councils in respect of the application
of provincial laws to these hill districts. Its suggestion was that provincial
legislation in respect of subjects entrusted to the councils should not apply
to an autonomous district or region except through an order of the council
itself which was to be empowered to make such modifications in such laws
as it might consider necessaiy. In particular, the sub-committee included
a clause concerning the drinking of rice-beer, which was a part of the hill
people’s life. It recommended that the councils should have the liberty to
permit or prohibit this according to the wishes of the people and that the
prohibition policy of the State Government should not apply automatically.
Accordingly one of its proposals was that legislation passed by the Provincial
Legislature prohibiting or restricting the consumption of “non-distilled

THE SCHEDULED AND TRIBAL AREAS

585

aloQilioIie liquor” would not apply to these areas unless it was applied by
the district or regional council with such modifications as it considered
suitable. All other legislation not dealing with special hill customs was
however to apply automatically.

The sub-committee laid special emphasis on the development of these
areas. It recognized that the statutory earmarking of funds was not feasible,
but considered it to be a matter of primary importance, having regard to
the fact that these districts occupied a position of strategic importance, that
constant touch should be maintained with the development and
administration of these areas. For this purpose the sub-committee made
two recommendations. As in the case of the Scheduled Areas in other States
the receipts and expenditure pertaining to each autonomous district and
region were to be exhibited separately in the budget estimates of the State.
In addition the Governor was to appoint a commission to report on the
administration of the autonomous districts generally and in particular on
the provision of educational and medical facilities and communications in
such districts and regions, the need for any new or special legislation and
the working of the district and regional councils.

The sub-committee’s recommendations also covered the taxation and
financial powers of the district and regional councils. These councils were
to have all the powers which local bodies in ordinary districts enjoyed :
and in addition they were also to have powers to impose house tax or poll
tax, land revenue, and levies arising out of the powers of management
of village forests. The report recognized further the claim of the councils
for financial assistance from general provincial revenues : and provided for
the payment of grants from the Central Government (a) to meet the average
excess of expenditure over the revenue during the three years immediately
before the commencement of the Constitution, and (b) to meet the cost of
such schemes of development as were required to be undertaken in these
areas for the purpose of raising llie level of administration.

These councils had thus very considerable powers — administrative,
legislative and financial — and naturally the sub-committee’s recommendations
contained safeguards against the abuse of these powers. The safeguards
were of two kinds. Where any individual decision or order was likely to
endanger the safety of India, the Governor, acting in his discretion, was
to have the power to over-rule the council and, if necessary, even to dissolve
it and himself take over the administration, to prevent the decision or order
taking effect. The Governor was also empowered at any time to order the
dissolution of a district or regional council and either order a fresh election,
or place the administration of the area either directly under himself or under
a commission or other body considered suitable. But such dissolution could
be ordered only on the advice of the commission set up by him to examine
the working of a council, and before taking over the administration of an
area he was required to obtain the approval of the Legislature.

586

FRAMING OF INDIA’S CONSTITUTION

These provisions, as already noticed, did not apply to the tribal areas
in the. tontier. The sub-committee noticed that regular provincial
administration was not possible in these tribal areas. The policy followed
in these areas was that of gradually extending the administration to them.
The sub-committee recommended that, so long as the administration was
not satisfactorily established over a sufficiently wide area, it should continue
to be with the Central Government, with the Governor of Assam as its agent.
When the administration was sufficiently well established over these areas,
the sub-committee thought that they could be transferred to the State as a
provincial responsibility ; and the State could then establish district and
regional councils.

The Eirafting Committee accepted these recommendations in their entirety
and incorporated them in article 255 of the Draft Constitution of February,
1948 and in the Sixth Schedule.

Tlie provisions of the Sixth Schedule were considered by the Constituent
Assembly on September 5 and 6, 1949. Several points of policy were raised
in the course of the debate. Brajeshwar Prasad moved two amendments
the effect of which would be to convert all these tribal districts into centrally
administered areas, to be administered by the Governor as the agent of
the President. He urged that the problems of Assam were very complicated
and beyond the resources of the Province to tackle. Assam was on the
border of several countries — China, Tibet, Burma and Pakistan. Within
the Province itself, he said, there had developed several conflicts— between
the Assamese and the Bengalis, between the tribesmen and the non-tribals,
between Ifindus and Muslims. It was in the light of all these facts that he
advocated centralization of the administration of these districts'. Kuladhar
Ghaliha was critical of the proposals of the Drafting Committee which aimed
at giving a considerable amount of autonomy to the district and i-egional
councils, derogating greatly from the authority of the State Legislature. The
tribes (he mentioned the Nagas in particular) were a primitive people and
had a way of rendering summary justice when they had a grievance : and if
they were allowed to rule or run the administration, it would be a negation of
justice and result in something like anarchy. He warned that the provisions
of the Sixth Schedule would lead to the establishment of “Tribalistan” and
the ultimate result would be a “Communistan” there’. Rohini Kumar
Chaudhury, another prominent member from Assam, was strongly in favour
of the assimilation of the tribal people. He was of the opinion that the
plan of autonomous districts was a weapon to keep the tribal |«ople
perpetually away from non-tribals, and “the bond of friendship which we
expect to come into being after the attainment of independence would be
tom asunder”. If the object was to educate the tribal people in the art

^C. A. Deb., Vol. IX, p. m4.

■Ibid., pp. 1007-8.

THE SCHEDULED AND TRIBAL AREAS

587

of government, the proper course would be to establish municipalities and
district boards".

These criticisms were countered strongly by Ambedfcar, Gopinath Bardoloi,
the then Chief Minister of Assam, and A. V. Thakkar. Ambedkar pointed
out that, while the tribal people in areas other than Assam were more or
less Hinduized, and assimilated with the civilization and culture of the
majority of the people in whose midst they lived, this was not the case with the
Assam tribals, whose roots were still in their own civilization and culture. This
was the justification for creating the regional and district councils with a
considerable measure of internal autonomy. At the same time, Ambedkar
added, the Constitution also provided for arrangements which would nullify
the tendency towards segregation. He referred to the fact that the executive
authority of the Government of Assam extended to the autonomous tribal
districts : the other binding force, in his view, was that Acts of Parliament
and the State Legislature would generally apply automatically to these areas
unless the Governor thought that they should not apply. On the other side,
the people of the tribal districts would have representation in Parliament and
the State Legislature, so that they would be playing their part in making
laws for Assam and also in making laws for the whole of India. Ambedkar
referred to these “cycles of participation” as a binding force, enabling both
sections of the people to come together, influence each other through
association and learn something from such contactsh

The schedule was eventually adopted by the Assembly with some
amendments moved by Ambedkar. Some were formal, but others made
material changes in the powers to be exercised by the State Government.
Perhaps the most important of these related to certain powers to be exercised
by the Governor in his discretion. In the Draft Constituticm as originally
proposed, these included the power to annul or suspend Acts and resolutions
of the district and regional councils which were likely to endanger the safety
of India, and take such steps as might be necessary, including suspension
of a council, to prevent such an Act or resolution taking effect (paragraph
15): and the power to adminfater an autonomous district during the
transitional period until a district council was constituted (paragraph 18).
Through amendments moved by Ambedkar, these functions became
exercisable on the advice of the Governor’s Council of Ministers®. Per contra
it was made clear that under paragraph 17 of the draft schedule which
provided that the administration of the tribal areas would be exercised by
the Governor as the agent of the Central Government, the Governor’s
powers would be exercised in his discretion and not on his Ministers’ advice*.
With these amendments all the “discretionary” powers of the Governors in

’C. A. Deb., Vo\. IX. pp. 1014-5.

TWrf., pp. 1024-6.

7feW., pp. 1051 and 1056.
p. 1055.

588

FRAMING OB INDIA’S CONSTITUTION

relation to the administration of States were removed and fully representative
parliamentary governments established in all States. The only function of the
Governor where ministerial advice was now excluded was when he acted as
the agent of the Central Government in relation to the administration of the
border areas in Assam.

Another important amendment moved by Ambedkar related to the judicial
power of the district and regional councils. In regard to less serious offences
these councils, or courts set up by them under the draft schedule (paragraph
4), were to function as the final court of appeal. Ambedkar moved an
amendment changing this position : he proposed that the High Court of
Assam should have appellate jurisdiction in respect of cases decided by the
district and regional councils, and the extent of these appellate powers of
the High Court were to be specified by the State Government’.

Equally important were the changes made in the legislative power of the
district and regional councils. Ambedkar moved amendments to secure that
all laws and regulations made by these councils would be submitted to the
State Government, and until assented to by the Governor they would have
no effectl Both Kuladhar Chaliha and Rohini Kumar Chaudhury moved
amendments designed to give the Assam Legislature greater powers of
control, but Ambedkar maintained that the intervention of the Legislature
was quite unnecessary. He said;

I think my scheme is much more consistent with the originals of the
scheme, namely, that the tribal people themselves should have a certain
inherent right given by the Constitution to make laws in certain respects.
That being so, my paragraph (3) is much more consistent with the scheme
and gives the Assam Ministry some power to advise the Governor as
to whether he should accept or not accept any law^.

These comments were made with reference to paragraph 3 of the draft
schedule which set out the important matters on which the district councils
and regional councils were given power to make laws. Tliere was a separate
provision in paragraph 10 which enabled these councils to make regulations
for the control of moneylending and trading in an autonomous district or
region by persons who were not members of a Scheduled Tribe resident in
the district. Ambedkar proposed an amendment that these regulations
should also be submitted to the State Government and should not become
operative until assented to by the Governor*.

Another amendment moved by Ambedkar and accepted by the Assembly
related to the application of Central and Provincial Acts to these areas.
The Ehraft Constitution of February. 1948, placed before the Assembly
divided these Acts into two categories. In the first category were Acts

iC. A. Deb., Vol. IX, p. 1033.

^md., pp. 1029-32.

‘Ibid., p. 1031.

‘Ibid., pp. 1040-1.

THE SCHEDULED AND TRIBAL AREAS

589

relating to matters in which legislative power was given to the autonomous
district and regional councils, and legislation which sought to prohibit or
restrict the consumption of rice-beer, defined as “any non-distiUed alcoholic
liquor”. It was laid down that this category of laws would not apply to
any of these hiU areas unless the district or regional council so directed.
In regard to other legislation the Draft Constitution provided that they would
ordinarily apply but power was given to the State Government to direct
that any individual law would not apply, or would be modified in its
application ; and before issuing such a direction the State Government was
required to obtain the approval of the district or regional council. This
requirement of approval was strongly criticized and Ambedkar moved an
amendment dispensing with it, thereby freeing the State Government “from
the trammels of any resolution that may be passed by the district council
or the regional council’”.

A new paragraph was added on Ambedkar’s suggestion to enable the
Governor to declare that for the purpose of elections to the Assam Legislative
Assembly, any area within an autonomous district would not be part of a
constituency reserved for the district. This amendment gave the inhabitants
of a district who were not members of a tribe an opportunity to have their
own constituency®.

The last of the important amendments moved by Ambedkar enabled the
amendment of the schedule by an ordinary Act of Parliament without the
necessity of going through the complicated procedure necessary for a regular
constitutional amendment®.

With the amendments moved by Ambedkar and accepted by the Assembly,
the Sixth Schedule to the Constitution was adopted.

NOTE ON AMENDMENTS

Sixth Schedule : The table showing the tribal areas in Assam, as originally
adopted by the Constituent Assembly and included in the Sixth Schedule,
read as follows ;

Part A

1. The United Khasi-Jaiutia Hills District.

2. The Garo Hills District.

3. The Lushai Hills District.

4. The Naga Hills District.

5. The North Cachar Hills.

6. The Mikir Hills.

Part B

1. The North East Frontier Tract including Balipara Frontier Tract, the

1C. A. Deb.. Yol IX, p. 1043.

Hbtd., p. 1055.

Ybid., p. 1079.

590

FRAMING OF INDIA’S CONSTITUTION

Tirap Frontier Tract, Abor Hills District and Misimi Hills District;

2. The Naga Tribal Area.

The Xushai Hills District (Change of Name) Act, 1954, substituted the
name “The Mizo District” for “The Lnshai Hills District”.

In Part A of the table, the , item “The Naga Hills District” was omitted
by the Naga Hills-Tuensang Area Act, 1957; the same Act ■ substituted
“The' Naga Hills-Tuensang Area” for the item “The Naga Tribal Area”, in
Part B of the table. Consequent on this area being constituted into a
separate State of Nagaland by the State of Nagaland Act, 1962, the Act
omitted the item from the table. The new State of Nagaland came into
existence with effect from December 1, 1963,

The Constitution (Thirteenth Amendment) Act, 1962, made certain special
provisions in regard to the State of Nagaland.

It inserted a new article 371-A which made the following provisions :

(1) No Act of Parliament in respect of the religious or social practices
of the Nagas, Naga customary law and procedure, the administration of
civil and criminal justice involving decisions according to Naga customary
law, and the ownership^ and transfer of land and its resources, was to
apply to the State of Nagaland unless the Legislative Assembly of
Nagaland by a special resolution so decided.

(2) The Governor of Nagaland was to have a special responsibility with
respect to law and order in the State of Nagaland for so long as in his
opinion internal disturbances continued in the State or any part of the
State. In the exercise of his special responsibility the Governor was
required to exercise his individual judgment as to the action to be taken
but after consulting his Council of Ministers. The President was
empowered by order issued to the Governor to direct the latter to cease
to have such a special responsibility if in the opinion of the President
the exercise of such a special responsibility was no longer necessary.

(3) In making his recommendation with respect to any demand for a grant
the Governor was required to ensure that any money provided by the
Government of India for any specific service or purpose was included in
the demand for a grant relating to that service or purpose and not in any
other demand.

(4) The Governor was required to set up a regional council for the
Tuensang district consisting of thirty-five members ; and, in his disci'etion,
the Governor was to make rules providing for the constitution and
functioning of this council

(5) For a period of ten years or for such further period as the Governor
might, on the recommendation of the regional council, specify certain
speciai provisions would have effect in relation to the ./administration of
the tribal area of Tuensang :

(a) the administration of the Tuensang district would be carried on by
the , Governor ;

THE SCHEDULED AND TRIBAL AREAS

591

(b) where any money was provided for the State of Nagaland as a whole
by the Government of India, the Governor would in his discretion
arrange for an equitable allocation of that money between the Tuemang
district and the rest of the State ;

(c) no Act of the Legislature of Nagaland would apply to the Tiiensang
district unless the. Governor on the recommendation of the regional
council by public notification so directed ; and in giving such direction
the Governor would provide that the- application of any Act would be
subject to such exceptions and modifications as he might specify ;

(d) the Governor was authorized to make regulations for the peace,
progress and good government of the Tuensang district and such
regulations could if necessary amend or repeal any Act of Parliament
or any other law applicable to the district ;

(e) the Governor had to appoint as Minister for Tuensang Affairs a
member of the Nagaland Legislature representing that district ; such
appointment would be made on the recommendation of the majority of
members representing the district in the Assembly; such Minister would
have direct access to the Governor on all matters relating to the district ;
and the final decision on all matters relating to the district would be
made by the Governor acting in his discretion.

RELATIONS BETWEEN THE UNION AND THE STATES

INTRODUCTORY

The federal concept in. India was not the product of a gradual process of
evolution but represented a decision which was somewhat abruptly taken
in 1930 as a result of the necessity of including the Indian States within
the Indian polity.

From the time of the Regulating Act of 1773, which consolidated British
possessions in India at the time, to the commencement of the Government
of India Act of 1935, in April 1937, the Government of India was subject
to general and detailed control by the Secretary of State for India in
responsibility to the British Government and Parliament.

The Charter Act of 1833 carried the process of centralization in India
to an extreme degree by depriving the Governments of Madras and Bombay
of all legislative powers and concentrating them in the Governor-General
in Council at Calcutta — & step which had to be reversed subsequently. This
Act also expressly vested in the Governor-General in Council the
superintendence, direction and control of the whole civil and military
Government of India. The term “Government of India” also came now to
be used for the first time ;

The entire government system was in theory one and indivisible. The
rigour of a logical application of that conception to administrative
practice had gradually been mitigated by wide delegation of powers and
by customary abstentions from interference with the agents of
administration. But the principle of the conceptions was still living and
operative and it blocked elfectively any substantial advance towards the
development of self-governing institutions'.

The Mcmtagu-Chelmsford Report, considering the position in the light of
the Declaration of August 20. 1917, accepted the “gradual development of
self-governing institutions with a view to the progressive realization of
responsible government in India” and came to the conclusion that the complete
fulfilment of the pledge could not take any form other than that of a congeries
of self-governing Indian Provinces associated for certain purposes under a
responsible Government of India. But they were very careful to make it
clear that the federal element did not enter into the arrangements suggested
by them. They recognised that their business was one of “devolution, of

’See Indian Statutory (Simon) Commission Report, 1930, Vol. I, para 128.

RELATIONS BETWEEN THE UNION AND THE STATES 593

drawing lines of demarcation,, of cutting long-standing ties. The Government
of India, must give, and the Provinces must receive; for only so can the
growing organism of self-government draw air into its lungs and live.” But
Montagu and Chelmsford made it clear that ''we must sedulously beware the
ready application of federal arguments or federal examples to a task which is
the- very reverse of that which confronted Alexander Hamilton and Sir John
Macdonald”'.

The Government of India Act, 1919, provided for a considerable measure
of devolution of authority to the Provinces. This was accompanied by a
further classification of provincial subjects into reserved and transferred
categories, the latter being entrusted to Ministers who were to work in
responsibility to their Legislatures. The Act also laid down that the powers
of superintendence, direction and control over Provincial Governments vested
in the Government of India could, in relation to the transferred subjects, be
exercised only for certain specific purposes^ All this undoubtedly gave a
certain measure of autonomy to the Provincial Ministries. The constitutional
position however enabled the Government of India to exercise full control;
and in practice the autonomy of the provincial Ministries was hedged in by
several reservations. It was with some justice that the Joint Select Committee
on Constitutional Reform observed in 1934 :

Notwithstanding the measure of devolution on the provincial authorities
which was the outcome of the Act of 1919, the Government of India is
and remains in essence a unitary and centralized Government, with the
Governor-General in Council as the keystone of the whole constitutional
edifice : and it is through the Governor-General in Council that the
Secretary of State and ultimately Parliament discharge their responsibilities
for the peace, order and good government of Indial

Subsequent enquiries into the question of constitutional reform in India
favoured some kind of a federal structure. Both the Simon Commission
(1927-29) and the Butler Committee (1927-30) visualized, even though as a
distant ideal, a federal Union for the whole of India. The picture however
changed with dramatic swiftness at the three Round Table Conferences held
ill London (1930-32) with the delegates of British India and those of Indian
States alike iinanimoiisly accepting the federal idea as the immediate, sGlution.
to the Indian constitutional problem*.

The Government of India Act. of 1935, which represented the ciilniination
of the discussions which started with the Round Table Conferences, set up a
federal polity in India, with a Central Government and Provinces deriving
their jurisdiction and powers by direct devolution from the Crown. But

:■ ^Report (Moniagu-^Chehmford)' on Indian Constitutional Reformsy 1918, para 120.

''^■Government of India Act (1924 Reprint), s. 45-A.

^Report ( 1934), '"para .'5. ■ '

‘^'For a 'Succinct account of the developments see G. ,N. Joshi, The' New .Constitution,
of India, pp. 51-2, and S. M. Bose, The Working Constitution'' in India, p. 29.

,39,.

594

FRAMING OF INDIA’S' CONSTITUTION

here again reservations were introduced. The federation had per se iio
organic relationship witli tlie units. It is true that there v/as a demarcation
of functions both in the legislative and executive fields between the Federation
and the Provinces. It is also true that, in certain circumstances,, where
requirements of federal interests necessitated it, the Federation had authority
to give directions to the Provinces. But the scheme of the Government of
India Act, 1935, was that in the last resort, the carrying out of these
directions depended not on authority vested in the Central Government, but
on the goodwill of the Governor-General ‘'acting in his discretion”. Thus
section 126 of the Act said that, if it appeared to the Governor-General
that in any Province effect had not been given to any directions given under
that section, the Governor-General could issue as orders to the Governor
of that Province either the directions previously given or those directions
modified in such manner as he thought proper. The Joint Select Committee
observed :

We do not think that the Governor of a Province ought to be placed in
a position in which in effect he is compelled to over-rule his own Ministers
at the instance of Federal Ministers ; and where a conflict of this kind
arises between the Federal Government and the Government of a
Province, any directions by the Governor-General which require the
Governor to dissent from, or to over-rule the Provincial Ministry ought
to be given in the Governor-GeneraFs discretion. The Governor-General
would thus become the arbiter between the Federal and the Provincial
Governments, and we think that disputes between the two are far more likely
to be settled amicably by the Governor-GeneraFs discretionary intervention^
These reservations considerably weakened the federal structure; indeed
the Central Government and Legislature had practically no powers to enforce
federal policies.

The federation envisaged by the 1935 Act was to come into being only
after the Rulers representing not less than half the aggregate population
of the Indian States had signified their decision in favour of accession. The
proposed federation which, apart from its many other peculiar features", was
to be a union between autocratic Rulers and more or less democratic
governments, was condemned by almost all political parties, including the
Muslim League and the Congress\ Linlithgow’s negotiations with the Rulers
of Indian States over the drafting of a standard Instrument of Accession
proved abortive inasmuch as the Rulers considered the proposed federal

^Report (1934), para 221.

®For a discussion of the peculiar features of the proposed federal scheme,
sec the Joint Select Committee Report (1934), para 27 and G. N. Joshi Tlie iVew»
Constitution of India, pp. 66-73.

®For the texts of resolution of the All-India Muslim League and Indian National
Congress, Gwyer and Appadorai, Speeches and Documents on 'the Indian
Constitution (1921-41% VoL 1, pp,

RELATIONS BETWEEN THE UNION AND THE STATES 595

seheme inadequate for protecting their s^pecial rights and iiiterests\' : The
outbreak of the world war in 1939 abruptly terminated the negotiations, and
on September 11, 1939, a formal olileia! announcement was made suspending
all work in connection' with the preparation for federation. Thus, when the
Constituent Assembly was set up under the Cabinet Mission’s Plan of May
16, 1946, the organization of the Central Government in British India
remained the same as it was under the Act of 1919, with the distribution
of legislative and administrative powers between the Centre and the Provinces
as contemplated under the Federal scheme — in other words, British India,
without the Indian States, was the federation minus the Federal Executive
and the Federal Legislature^

LEGISLATIVE RELATIONS

Distribution of Legislative Powers {Articles 245 to 255 and'

Seventh Schedule)

Under the Cabinet Mission’s Plan of May 16, 1946, British India and the
Indian States were together to constitute a Union of India with jurisdiction
over the subjects of foreign affairs, defence and communications and with
powers necessary to raise the finances required for these subjects. All
subjects other than Union subjects and all residuary powers were to vest in
the Provinces. The Indian States were to retain all subjects and powers
other than those ceded to the Union^

The first attempt in the direction of analysing the precise content and
scope of Union subjects, as well as the Union’s power to raise finances,
was made by B. N. Rau, the Constitutional Adviser to the Constituent
Assembly, in his notes on Constitutional Precedents published early in
September 1946*. In these notes he explained generally the ambit of foreign
affairs, defence and communications with reference to the position in regard
to those subjects under various modern constitutions of the world and the
Government of India Act, 1935, On an important issue namely, the scope
and implications of treaty-making powers, which the Union possessed under

"^See Proceedings of the Meetings of Chamber of Princes, Gwyer and Appadorai,
VoL.II,:pp. 757-8.

“Viceroy’s address to both Houses of the Central Legislature on September
1L 1939, £. A.: Deb., VoL V, pp. 431-4. For an account of the negotiations
with Princes, see R. Couplaod, The ConstUutimia! Problem in India (Madras,
1945), Part 11, pp. 4-6 and V. P. Menon, The Story of the Integration of the
Indian States, pp. 36-45.

^Cabinet Mission’s statement of May 16, 1946, para 15 (1) to (4). Select Documents
"'I,,48(i), p. 213.

^Constitutional Precedents (First Series), Select Documents ll, 26(i), pp. 687*706.

596

FRAMING OF INDIA’S CONSTITUTION

the subject “foreign affairs”, B. N. Rau cited the Privy Council’s decision
given in 1927 in Attorney General for Canada v. Attorney General for
Ontario and others. In this case the Privy Council ruled as invalid certain
Acts of the Canadian Parliament regulating conditions of labour in various
ways, as the legislation related to a provincial subject, although it was
sought to be justified on the ground that it was required to give effect to
certain international conventions which had been ratified by the Dominion
of Canada :

The Dominion cannot, merely by making promises to foreign countries, clothe
itself with legislative authority inconsistent with the Constitution which gave
it birth. . . It must not be thought that the result of this decision is that
Canada is incompetent to legislate in performance of treaty obligations. In
totality of legislative powers, Dominion and provincial together, she is fully
equipped. But the legislative powers remain distributed and if, in the
exercise of her new functions derived from her new international status,
Canada incurs obligations, they must, so far as legislation is concerned,
when they deal with provincial classes of subjects, be dealt with by
cooperation between the Dominion and the Provinces.

He also pointed out that the provisions in section 106(1) of the Government
of India Act of 1935 were based on a similar view. That section said :
The Federal Legislature shall not, by reason only of the entry in the
federal legislative list relating to the implementing of treaties and agree-
ments with other countries, have power to make any law for any Province
except with the previous consent of the Governor.

As regards the ambit of defence power, B. N. Rau underlined its wide
scope by referring to the position in Australia and the United States, Although
in the Australian Constitution the relevant entry [section 51(vi)] referred
only to “naval and military defence” of the Commonwealth, in the well-
known Australian Bread case (in which the validity of a war-time Regulation
fixing the maximum price of bread was impugned) the court had held
“defence” to comprehend everything in relation to national defence that
the Commonwealth Parliament might deem advisable to enact. Likewise,
in the United States “almost limitless activities”, both as regards strictly
military matters and the incidental civil control of the energy and resources
of the nation, could be undertaken in exercise of the war power of the
Congress. No act of the Congress was held invalid by the Federal Supreme
Court as outside the war-power’.

B. N. Rau also drew attention to the fact that the Cabinet Mission’s
statement was silent on the important question whether the Union’s power
to raise finances would be one of direct taxation as a right of the Union
or merely a power to levy contributions from the Provinces. The experience
of the United States and Switzerland had proved that the system of

'Constitutional Precedents (First Series), Select Documents, Vol. II, 26{i), np. 691-6.

RELATIONS BETWEEN THE UNION AND THE STATES

597

contributions was a failure and constitutional provisions had to be made
in both these States authorizing the Federal Government to enter the field
of direct taxation to meet defence expenditure. In India, the system of
provincial contributions to the Centre, under what was commonly known
as the Meston Award, in operation for a brief period following the
constitutional reforms of 1921, had proved a source of constant friction
between the Centre and the Provinces'.

Of necessity, keeping itself within the limits set by the Cabinet Mission’s
plan, the Objectives Resolution moved in the Constituent Assembly by Nehru
on December 13, 1946, envisaged a Republic of India wherein the various
territories would possess and retain the status of autonomous units together
with residuary powers, and exercise all powers and functions of government
and administration, save and except such powers and functions as were
vested in or assigned to the Union, or as were inherent or implied in the
Union or resulted therefroml The long debate on the resolution highlighted
the fact that a large section of the Assembly was convinced of the need for
a strong Centre in the best interests of the country ; and if, in spite of such
a conviction it was willing to accept the scheme of a limited Centre and
autonomous units with residuary powers, it was only because of an over-
riding desire to secure the cooperation of the Muslim League (which was
still staying away from the Assembly) in the task of framing a constitution
for a united India®.

Even so, while the cciislitutional structure of the future Republic as outlined
in the resolution was broadly in accord with the Cabinet Mission’s scheme,
the reference to the inherent, implied or resultant powers of the Union was
a sufficient indication of the Assembly’s desire for a wide definition of the
Union’s powers. Further evidence of this trend followed when the resolution
setting up the Union Powers Committee, adopted by the Assembly on January
25, 1947, invited the committee to report on the scope of Union subjects
under the Cabinet Mission’s plan and ‘To draw up lists of matters included
in and inter-connected with” those subjectsT

The Union Powers Committee received a number of notes on different
aspects of Union powers from Alladi Krishnaswami Ayyar and K. M. Munshi.
The former obsen^ed that in dealing with the subject of Union powers, one
of the chief problems requiring consideration would be the relationship
between the Union and the units. He emphasized, in particular, the widely

^Constitutional Precedents (First Series), Select Docummis, ' ''Yol, II, 26(i),
pp. 701-6. Regarding Provincial contributions under the Meston Award also
yee Report ' of the Dxpert' Committee on the Financial Frovisiom of the Union
Constitution, Select Documemts III, 4(ni}, p. 264.

,®For the text of the Resolution and other details, see the chapter on '•'‘Preamble”.

A. Deb,, Vol. I, pp. 64-5, 86, 93 - 4 , 99-100 and 103: speeches of P. D. Tandon.
S. K. Sinha, S.'. P. Mookerjee, Ambedkar .and Ujjal Singh.

Ybid., VoL II, pp. 330-6; see Select Documents II, 27(i), p. 707.

598

FRAMING OF INDIA’S CONSTITUTION

accepted principle of the -paramountcy of the Union or federal law over
provincial law. In view of the existing differences between the constitutional
status of the Indian States on the one hand and the British Indian Provinces
on the other, it would be necessary to have a definite provision to the effect
that the laws of the Union should have the same force within the territory
of every unit. Special attention would also have to be paid to the question of
the execution of federal laws and to the subject of provincial or State militiah

In another note, Ailadi Krishnaswami Ayyar said that it would be priident
to draw up a clause giving recognition to the doctrine of implied powders.
The real sanction for. inferring implied or resulting powers from the powers
expressly granted lay in the principle, which a number of judicial decisions
in the United States had helped to evolve and finally to establish* that a
nation entrusted with wide powers affecting the happiness and welfare of
millions must necessarily be entrusted with ample means for their execution^
As a pre-eminently apt case for the application of the doctrine, he suggested
that from the express powers envisaged for. the Union in the Cabinet Mission’s
plan it would be permissible to infer that the Union had an implied or a
resulting power over currency and bills of credit ; for it was unthinkable
that the Union Government in charge of communications (for instance,
railways and post offices) should collect its dues in different currencies
prevalent in the different units. Again, it would scarcely be possible for
the Unic«i to organize its armed forces without paying them in a common
currency or to conduct foreign relations if there were to be multiple currencies
for the different uni^s^ Lest there be a temptation to stretch the meaning
of the doctrine of implied powers too far, he drew attention to the rule,
supported by decisions in all federal constitutions, that under the guise of
incidental, implied or resulting powers, a federal government could not
encroach upon the powers expressly reserved to the units\

As for the Union’s powers under ‘'communications”, Ailadi Krishnaswami
Ayyar felt that it was necessary to enlarge the scope of the Union’s jurisdiction
under the subject “communications” so as to cover trade relations between
different parts of India since the whole basis of an enduring future structure
of the Union would depend upon the freedom of inter-statal or inter-
provincial trade®. Further, he pointed out, trade and commerce with the
outside world, which would have necessarily to be brought under foreign
relations, might also impinge on the subject of “communications”®.

^Ailadi Krislinaswami Ayyar’s notes on Union Powers, Select Docmnmts II,
2g(ii) (a), pp. 714-5.

: “Note on Express,' Implied and Resultant Powers, Select Documents 11, 28(11) (b),
pp. 715-8. , • ■

;■ *Note on the ‘‘Problem of 'Currency”, Select Documents II,: 28(11), (f), ,pp. : 723-4.

“Conclusion”, Select Documents 11, ’28(ii) (h), p. 725.

^Select Documents II, 28(ii) (d), pp. 719-22.

RELATIONS’ BETWEEN THE UNION AND THE STATES

599

On the subject of ' the financial resources, of the Union, Alladi Krishnaswami
Ayyat; was- definitely of the view that the Union’s powers, ■ under the Cabinet
Mission’s statement, to raise the requisite finances must necessarily be taken
to include the power to impose the necessary taxes. The defence of the
country being a vital principle on which the constitutional structure must
rest, it was inconceivable that the Union could rely upon uncertain
contributions from the units for the purpose of meeting its defence needs.
He suggested that in allocating the taxing power between the Union and
the Provinces it might be useful to proceed on the basis of the scheme
embodied in the Act of 1935. While in terms of the Cabinet Mission’s
statement, the Union’s power to tax had to be regarded as a power to levy
taxes for particular subjects and not as a general power to levy taxes, it
was not possible to equate the finances raised with the amount required
for a particular subject. A provision might therefore have to be made for
the handing over of any real surplus to the Provinces concerned^

Munshi, who submitted two notes, restricted himself to listing the various
matters or items, including certain entries of the Federal List of the
Government of India Act, 1935, which, he felt, fell within the scope of the
Union’s powers over defence, foreign affairs, communications and its implied
and resultant powers. Under ‘"defence” were enumerated seven items
including one giving a wide and general definition of the term. “Foreign
affairs” again consisted of a general definition and seventeen other items,
including “trade and commerce with foreign countries” and “participation
in international conferences, associations and other bodies and implementing
of decisions made thereat”. “Communications” included 11 items — ^nine of
them being from the Federal List of the 1935 Act. The implied and resultant
powers of the Union envisaged by Munshi spread over fourteen items.
Notable among these were the Supreme Court of India ; acquisition of
property for the purposes of the Union, the recognition throughout the
Union of the laws, the public acts and records and the judicial proceedings
of every State, and Planning^

At the first meeting of the Union Powers Committee held on March 2,
1947, Nehru, who was elected its Chairman, posed two important questions :
(i) whether there should be a strong Centre: and, if so, what powers it
should have: and (ii) whether it would be possible to have a minimum
compulsory list, as contemplated in the Cabinet Mission’s statement, and
another list which, if the units were willing, they could transfer to the Centre.
No decision could, however, be taken since, as Gopalaswami Ayyangar
pointed out, the position, so far as the Indian States were concerned,, had
to be separately examined with their representatives who were yet to come
into the Assembly. Some of them had armed forces, and some had railways

. ^Select' ^Dommenis. 11, 28(ii) (t), pp, 722-3.

II, 2S(i) (a) and (b), pp. 712-3.

600

FRAMING OF INDIA’S CONSTITUTION

and were dependent on the income derived from them.

The committee proceeded to consider the subjects one by one on the basis
of the list of items in regard to each subject prepared by Munshi. The
first subject to be taken up was foreign affairs. There was a lengthy
discussion on what constituted “trade and commerce” and how far it could
be said to come within the purview of foreign affairs. In regard to the
vexed question of the implementation of treaties, Alladi Krishnaswami
Ayyar urged that the Union must be in a position to overrule any
Province. After discussion it was tentatively agreed to list under the head
“foreign affairs” fifteen items, including trade and commerce with other
countries and entering into and implementing treaties and agreements with
other countries.

The next subject discussed was defence. At the outset Alladi Krishnaswami
Ayyar observed that in defining the scope of the defence power of the Union
the Government of India Act of 1935 would not be of any help since under
that Act India had no general defence power. He was not in favour of
attempting a detailed definition of defence, for under modem conditions
defence power was an all-embracing power, very difficult to define and, in
any case, at that stage it was not necessary to go into the details. This
view was shared by Nehru. There was considerable discussion on the
question whether the units could be allowed to raise armies or local militia.
Munshi was in favour of retaining with the Centre the power to legislate
on the question of raising armies, but Gopalaswami Ayyangar reminded
the committee that if they assigned defence exclusively to the Union it
would be necessary to bear in mind the existing practice in the Indian
States. (He was obviously referring to the fact that in several Indian States,
the State forces were used for police work.) Nehru emphasized that, since
defence would remain with the Centre, the right of any unit to raise armies,
if at all recognized, would have to be subject to the right of the “paramount
power”, i.e., the Centre, to control them. The subject evidently bristled with
difficulties, and it was agreed that B. N. Rau might draft a formula defining
“defence” in the light of the discussions'.

The committee continued its deliberations on March 3 and 4. 1947.
Among other things it reconsidered the subject of defence in the light of the
formula which B. N. Rau had drafted in the meantime. His proposals
involved two significant changes in the definition earlier formulated by
Munshi, and discussed in the committee. In the first place, forces raised
for employment in Indian States, and military or armed police maintained by
the Provincial Governments, would not be subject to Union control, except
when they were actually attached to, or operating with, the Defence Forces
of the Union. Secondly he suggested that a provision on the lines of

^Union Powers Committee proceedings, March 2, 1947, Select Documents 11, 29(i),
pp. 728-34.

RELATIONS BETWEEN THE UNION AND THE STATES

€01

sections 102 and 126-A of the 1935 Act might be incorporated in the body
of the Constitution, so that the Union might have plenary executive and
legislative powers even on matters in the State List in situations when the
security of the country was. gravely threatened whether by war or by internal
disturbaiiceh The first suggestion did not seem to find favour with the
committee. The second suggestion was readily accepted. The committee
also arrived at certain conclusions in respect of The Union’s powers, under
the headings ‘Toreign Affairs”, '‘Communications” and "Implied Powers”
and the scope of the expression "the powers necessary to raise the
finances required” for the Union subjects. This constituted a formidable
list of legislative and taxing powers and Nehru, as the Chairman of the
committee, took care to enter a caveat that the conclusions reached at these
meetings were "purely provisional” and would have to be considered againL

The committee went over the entire ground again after two representatives
of the Indian States, V. T. Krishnamachari (representing the Jaipur State)
and B. L. Mitter (representing the State of Baroda) had been nominated
to it on April 10, 1947. It also appointed a sub-committee, consisting of
K. M. Munshi, Gopalaswami Ayyangar and V. T. Krishnamachari, to
re-examine certain items tentatively settled earlier. The sub-committee made
some suggestions designed to safeguard the position of the Indian States.
One of these was for the addition of a proviso to the item relating tc posts
and telegraphs to the effect that any existing right in favour of any individual
unit w^ould be preserved to the unit till it was modified or extinguished by
agreement between the Union and the unit concerned, subject, however, to
the power of the Union to make laws for regulation and control. Two
other suggestions were made by the sub-committee, the first one being that,
where a Union levy would cripple the existing resources of a State,
compensation should be paid, and the second giving an option to a Ruler
to elecf that Union corporation tax would not be levied in his State by
the Union but that in lieu he would pay a contribution to the Union for a
specified period*. These suggestions were in the main accepted by the Union
Powers Committee and incorporated in its draft report.

Meeting again on April 16 and 17„ the committee reviewed the scope of
the Union powers, and with some modificatioiis, adopted the draft report
which thus became the first Report of the Union Powers Committee®. ' The
report was mainly concerned with enumerating matters which, in the opinion
of the committee, fell within the ambit of the subjects assigned to the Union

^Select Docutnenis II, 28(ii.i}, pp. 725-7.

^Union Powers Committee minutes, March 2., 3 and 4, 1947, Select Documents II,
■29(i.|), pp: 734-7. '

' ^On ..the' J.ines of section 139 of the Government of India Act, !935.

^Select Documents II, 29(.iii), pp. 737-8...

." 3'|^fd.,H,'29,'pp.. 738-42."

mkL II,.29(vi).'.aii'd. 330, .pp. '7'4.2-7. . '■

602

FRAMING OF INDIA’S CONSTITUTION

under the Cabinet , Mission’s plan,, or of the implied, inherent or- resultant
powers of the Union.

Defence, as defined by the committee, connoted the defence of the Union
and of every part thereof and included generally all preparations for defence
as well as all such acts in times of war as might be conducive to its successful
prosecution and to effective demobilization after its termination. In
particular, defence included (1) the raising, training, maintenance and control
of naval, military and air forces and the employment of these forces for the
defence of the Union and the execution of the laws of the Union and its
units; and the strength, organization and control of the existing armed forces
raised and employed in Indian States'; (2) defence industries; (3) naval,
military and air force works; (4) local self-government in cantonment areas;
(5) arms, firearms, ammunition and explosives ; and (6) atomic energy and
mineral resources essential to its development.

The committee defined foreign affairs as covering all matters which
brought the Union into relation with any foreign country, and listed seventeen
items under this head. Some of these were : diplomatic, consular
and trade representation; United Nations Organization; participation in
international conferences and other bodies and implementing of decisions
made thereat; war and peace; entering into and implementing of treaties and
agreements with other countries; trade and commerce with foreign countries;
extradition ; admiralty jurisdiction ; admission into and emigration and
expulsion from the Union ; and import and export across customs frontiers.

Under ‘‘Communications” the Union’s jurisdiction was extended to airways;
highways and waterways declared by the Union to be Union highways and
waterways; shipping and navigation on Union waterways; posts and
telegraphs®; Union telephones, wireless and broadcasting; Union railways
and the regulation in certain essential matters of all other railways ; maritime
shipping and navigation; major ports, etc.: in all 12 items.

The Union’s power to raise finances, the committee affirmed, necessarily
included the power to raise finances by taxation and loans. It recommended
that the Union’s sources of revenue should “in existing circumstances” include
duties of customs, including export duties; excise duties; corporation tax;
taxes on income other than agricultural income ; taxes on the capital value
of the assets, exclusive of agricultural land, of individuals and companies ;
taxes on the capital of companies; duties in respect of succession to property
other than agricultural land ; estate duty in respect of property oilier than
agricultural land ; and fees in respect of any of the matters in the list of

^As the committee pointed out in its second report of July 5, 1947, para 5, its
intention in mentioning “the strength, organization and control of the armed forces
raised and employed in Indian States” was to maintain all existing powers of coordina-
tion and control exercised over such forces by the Government of India.

®This was subject to a proviso preserving any existing rights in favour of any
State unit, as suggested by the Sub-Gommittee of the Union Powers Committee.

RELATIONS BETWEEN THE UNION AND THE STATES

Union powers. In view of the fact that some of these taxeg were at the
time regulated by agreements between the Government of India and the Indian
States as also because of the dissimilarities between British India and the
States in matters of economic and industrial development, the committee
recommended that uniformity of taxation throughout the units might be kept
in abeyance for a maximum period of fifteen years during which the
incidence, levy, realization and apportionment of the above taxes in the State
units should be subject to agreements between them and the Union
Government. This ‘'special concession” to Indian States, as Gopalaswami
Ayyangar put it, was jointly formulated by B. L. Mitter, V. T. Krishnamachari
and Alladi Krishnaswami Ayyarh

As regards the powers implied or inherent in or resultant from the express
powers of the Union, the committee recommended fourteen items as coming
within this category. Significantly, “currency, coinage and legal tender” and
“powers to deal with grave economic emergencies in any part of the Union
aifecthig the Union” — both implying a considerable accretion to the range
of the Union’s powers and its strength — ^found a place in this list. Other
notable items were the Reserve Bank of India and Union services. All
subjects in respect of Union areas, naturally came within the exclusive
jurisdiction of the Centre. “Planning”, on which Munshi had laid
considerable stress, was not included in this category. However, the committee
recognized the necessity of uniformity and coordination in regard to planning
and in certain matters having a bearing on trade and commerce, such as
insurance, company laws, banking, etc., and expressed the hope that all
these subjects would be included by agreement in the Union List It also
recommended the insertion in the Constitution of a provision on the lines
of section 51(xxxvii) of the Australian Constitution, empowering the Federal
Government to exercise authority on matters referred to it by one or more
units, it being understood that a Union Law made under this power would
extend only to the units by which the matter was referred or which afterwards
adopted the law. A further recommendation was made that by agreement
there might be a list of concurrent subjects as between the Union and the
units.

The Report of the Union Powers Committee came in for some critical
comment from one of the prominent members of the committee, Gopalaswami
Ayyangar, who said that he had signed it just the sake of getting on
with the work”, but thought it necessary to clarify and elucidate some of
the points dealt with therein, and correct what might be spotted as obvious
errors. Fie drew attention to the basic difference between the attitude of
the Congress and of the Muslim League on the subject of taxation. The
Congress had maintained that the Union of India, as contemplated in the

^'^See paragraph suggested by B. L. Mitter, V. T. Krishnamachari and AHadi
Krishnaswami Ayyar; and Gropalaswami Ayyangar’s note on the Report of the Union
Powers Committee, para 7, Sdect Dacumenis II, 29(v)' and 30(ii), pp.' 742, 747-50.

604

FRAMING OF INDIANS CONSTITUTION

Cabinet Mission’s statement of May 16, 1946, would have the power to raise
revenue in its own right. On the_., other hand, the Muslim League was of
the view that the Union should depend on contributions ' from the units, and
that in no event should it have power to raise revenue by means of taxation.
Gopalaswami Ayyangar said :

The specific mention of such powers in paragraph 15(1) of the Cabinet
Mission’s plan must have been intended simply to place the matter beyond
all doubt, in view of the different points of view taken by the Congress
, and the Muslim League as regards the manner 'in which the Union would
raise the finances required. The actual language in that sub-paragraph must
therefore be deemed to indicate that the Union Government would have the
widest freedom in raising whatever finances it might need.

Tlius, in the view taken by the committee,, the power of the Union to raise
finance would be wider than the power to impose taxes on specified items
and, though the list of taxes contained in the report of the committee
mentioned a number of particular items of taxation, it would be open to
the Union to impose other taxes also when the need arose. In other words,
both the Union and the units would have concurrent jurisdiction over a large
field of taxation. In addition Gopalaswami Ayyangar maintained that the
finances which the Union could raise would comprise not only the
proceeds of taxation but also' tlie funds raised by public borrowing, the
sale proceeds and income from movable and immovable property belonging
to the Union, contributions from units and other miscellaneous receipts of
a varied nature.

Having thus proceeded to establish the principle that the Union would
have powers to levy whatever revenues or taxes it considered necessary,
Gopalaswami Ayyangar went on to safeguard the interests of the units ; he
said that the items listed in the report of the committee had been wrongly
described as sources of revenue for the Union. The decision deliberately
taken by the committee was that for smooth functioning it was desirable
that as far as possible there should be no deviations from conditions then
existing. Under the Government of India Act, 1935, certain duties like
succession duties and estate duties in respect of property other than
agricultural land were taxes for which the federation could only enact
legislation ; the entire net proceeds of these duties were to be distributed
among the units. Taxes on income other than agricultural inco'fiie would
also be legislated for by the federation, but the proceeds from' such taxes
had to be shared between the Centre and the units. Gopalaswami Ayyangar
said that these and other matters of substance would have to be carefully
investigated and decisions taken ■ before the regular drafting of the
Constitution was taken up\

The first Report of the Union Powers Committee synchronized with a
^Select Documents II, 30(ii), pp. 747-50.

RELATIONS BETWEEN THE UNION AND THE STATES

605

rapidly developing political situation with the possibility of a partition of
the country looming ahead and no decision on the vital issues dealt with
in the report could possibly be taken by the Assembly. As Gopalaswami
Ayyangar explained in presenting the report to the Assembly on April 28,
1947, a fateful decision being imminent on the question whether or not India
was to remain united, it was likely to affect the nature and scope of the
committee’s reconunendations. If, as was feared, it should finally be decided
to partition the country, it might become necessary for the Assembly to
deviate from a rigid conformity with the Cabinet Mission’s plan; and in
that event the whole question of the relations between the Union and the
units as regards the exercise of legislative and executive powers would require
a fresh and thorough examination. Such a re-examination would have to
be done by the Union Powers Committee in close collaboration with the
committees proposed to be set up for settiing the principles of the Union
Constitution and a model Provincial Constitution. In view of these
circumstances consideration of the report was deferred and it was agreed
that the Union Powers Committee might submit a further report in the
light of the situation that might eventually develop’.

The Union Constitution Committee, set up on April 30, 1947, received from
some of its members comprehensive drafts on the principles of the Union
Constitution, a draft constitution and a set of “general directives” from
K. T. Shah, another draft constitution from K. M. Munshi, and a
memorandum on the principles of the Union constitution jointly prepared
by Gopalaswami Ayyangar and AUadi Krishnaswami Ayyar — ^which contained
inter alia, specific provisions dealing with Union-unit relations. Briefly the
drafts showed a wide measure of agreement on the essentials of federal
relationship. Thus, while the distribution of powers between the Union and
the units was, in each case, on the lines of the Cabinet Mission’s plan, it
was also generally accepted that the Union’s jurisdiction would extend to
all matters, implied, inherent and resultant from the express powers ; that in
the event of conflict a Union law would prevail over the law of a unit ;
and that at the request of one. or more units, the Federal Parliament would
have power to enact legislation on a subject which otherwise fell within the
legislative competence of a unit, though, of course, such legislation would
be operative only in the concerned units.

In addition, Munshi suggested a provision empowering the Union
Legislature to enact laws for giving effect to treaties with foreign countries
or international agreements and another provision which stipulated that the
existing armed forces of the Indian States would be absorbed into the armed
forces of the Union or disbanded by a date to be fixed by the Union
Legislature. Gopalaswami Ayyangar and AUadi Krishnaswami Ayyar
recommended that, as in the Government of India Act of 1935, there should

■C. A. Deb., Vol. Ill, pp. 359-62.

606

FRAMING OF INDIA’S CONSTITUTION

be three legislative lists— an exclusive federal Est, an exclusive unit Est and
a concurrent list'. One of the members of the committee, K. M. Panikkar,
pleaded for the outright rejection of the federal principle on the ground that
in the circumstances of India, federation with its corollary of a weak Central
Government, was likely to be a dangerous experiment, especially from the
point of view of defence and all that it involved in terms of peace-time
organization: a federation with a limited centre was conceivably an
“unavoidable evil” in India, so long as the Muslim majority Provinces had
to be provided for in a “full Union”. Since the Cabinet Mission’s plan only
contemplated a loosely confederated Centre, it was not necessary to provide
for such a system for the other Provinces of British India. The basic principle
of the Constitution, at least for the non-Muslim majority Provinces, Panikkar
strongly urged, should be a unitary one, with suitable provisions for the
States and other units desiring to accede to the Centre in a limited manner”'.

In his memorandum prepared for the committee, B. N. Rau did not include
any provisions to be inserted under the head “distribution of legislative
powers between the Union and units”; he merely commented that these
provisions would depend on the decisions that might be taken by the Assenibly
on the Report of the Union Powers Committee. If it was decided to abandon
the Cabinet Mission’s plan the whole matter would have to be considered de
novo and in that case the Assembly might choose to have either a unitary
type of constitution or a federation with the existing distribution of powers
between the Centre and the units. A unitary constitution for India might
no longer be practical politics; but if a federal type of constitution was
decided upon, it should contain a provision enabling the units to form
groups for regional administration of selected subjectsl
With the British Government’s announcement of June 3, 1947, all hopes
of preserving the unity of India vanished, and the partition of the country
became a firm decision. Despite the severe disappointment it caused to the
national leaders who had all along striven for an undivided India, the proposals
embodied in the announcement had their redeeming feature inasmuch as they
ended a period of political uncertainty and released the Constituent
Assembly of India from the severe limitations on the scope of Central
authority envisaged in the Cabinet Mission’s plan, which it had earlier
accepted, “much against its judgment of the administrative needs of the
country”, to accommodate the Muslim League. As was expected, a decisive

T. Shah’s “General Directives”, paras 6 and 7, and “Summary of the Draft
Constitution for the Union of India”, chapters VII and XII; Mimshi’s “Draft
Gonstitutlon of the Union of India”, chapter IV, articles XXX-XXXIV (not printed)
and “Memorandum on the Principles of the Union Constitution”, prepared by
Gopalaswami Ayyangat' and Alladi Krishnaswami Ayyar, chapter II.!, articles 20-3,
Select Documents II, i5(i) and (vi), pp. 457, 545-6.

%/d., IJ, 15(iv) and (v), pp. 533-40.
mid. II, 15(ii), p. 491.

RELATIONS BETWEEN THE UNION AND THE STATES 607

swing followed in , favour of a strong Centre. The Union Constitution
Committee and the Provincial Constitution Committee decided, 'at a joint
meeting on June 5, that in view of the -June 3 announcement, the limitations
imposed' by the Cabinet Mission's plan on the form of the Constitution
no longer existed^ The next day, the Union Constitution Uommittee,
dealing with the basic question whether India should be a unitary State or a
federation, arrived at the following tentative decisions :

(1) that the constitution should be a federal structure with a strong
centre ;

(2) that there should be three exhaustive legislative lists, viz-, federal,
provincial and concurrent, with residuary powers for the Centre ; and

(3) that the Indian States should be on a par with the Provinces as
regards the Federal Legislative List, subject to the consideration of any
special matter which might be raised when the lists were fully prepared^

These decisions were again examined and fully endorsed at another joint
meeting between the Union and the Provincial Constitution Committees,' on
June 7. This joint meeting was specially convened at the instance of the
Provincial Constitution Committee which had found it difficult to proceed
with various important points pertaining to its work, such as the functions
and the mode of appcdntment of the Governor of a Province, in the absence
of a decision on the primary question of the form of the Constitution. The
three decisions accepted at the joint meeting were later incorporated in the
Report of the Union Constitution Committee, July 4, 1947\

A joint sub-committe^ set up by the two committees was, however, careful
to point out that, since the entry of the Indian States into the Assembly
would be on the basis of the statement of May 16, any extension of Union
powers to the States would have to be with their consent.

The Union Constitution Committee did not consider it feasible, at that
stage, to formulate the provisions to be included in the Constitution on the
subject of the distribution of legislative powers between the Federation and
the units. It felt, as did B- N. Rau earlier, that the nature of these provisions
would depend upon the decisions on the second Report of the Union Powers
Committee. This committee was expected to redefine the respective legislative
spheres of the Federation and the units in the light of the political changes
and the resultant emphasis on a strong Centre and on the basis of three
exhaustive legislative lists®.

. , Select ^Bocuments II, 19, p. 607.

' ®UnloQ, Constitution Committee minutes, June 6, 1947, Select Documents
; pp 555-6.

mid., II, 19' and IS, pp. 608-9, : 584. ■

mid.. II,^';20,,''P.'':6!6. '

^Report of the Union Constitution Committee, . July 4, 1947 . and minutes of the
joint meeting of the Union Constitution and Union Powers Committees, Jane 30,
\9A1. Select Documents 11, 1% 1^1-'^.

608

FRAMING OF INDIANS CONSTITUTION

; ^ Meanwhile, the Union Powers Committee received various suggestions for
the assignment of certain items to one or the other of the three lists. The
Secretary of the Department of Agriculture, Goverament of India, pointed
out that the Prices Sub-Committee of the Policy Committee on Agriculture,
Forestry and Fisheries had, in its report, recommended the setting up of
an ' all-India Agricultural Prices Council, consisting of representatives of
Central, Provincial and Indian States Governments, for the purpose of evolving
an integrated price policy for agricultural and animal husbandry products.
He requested that this recommendation might be brought to the notice of
the Assembly so that it might consider the desirability of making appropriate
provision in the Constitution for the purpose\ The Department of Education,
Government of India, recommended that, as under the 1935 Act, the three
Universities of Delhi, Aligarh and Banaras should continue to remain Central
or Union subjects. It also suggested that a further subject — the coordinated
development of university education — ^might be brought under the exclusive
powers of the Union^

Among the suggestions from members of the committee was a strong plea
for. concurrent jurisdiction in broadcasting by Pattabhi Sitaramayya who held
that the position in regard to the subject under section 129 of the 1935 Act
was ‘‘most unhappy” as the Central Government had absolute power over
the subject. He urged that, in view of the importance of broadcasting for
various nation-building activities, such as rural uplift and rural education,
which were primarily the responsibility of the units, it was essential that
there should be a provincial (or State) sphere in broadcasting^ Munshi
suggested the addition of a number of items under each of the five categories
into which the Union’s powers were classified in the first report of the
committee^. Another list of additions was sent by D. P. Khaitanl

Lastly, in a note on Union finance in relation to the Indian States,
V. T. Krishnamachari, representing the Jaipur State, sought to urge once
again the necessity of ensuring that any scheme of financial adjustments to
be arrived at would be such as not to cause serious dislocation in the States.
He also desired that, in enumerating the sources of revenue for the Union,
a distinction should be made between taxes raised for meeting the oMigations
of the Centre and taxes the proceeds of which, though levied by the Centre,
would be distributed to the Provinces. These taxes, e.g., succession duties
and estate duties, should be made available to the Provinces®.

Tlie Union Constitution and the Union Powers Committees at three joint
meetings on July 1, 2 and 3, 1947, settled the legislative lists. At the first

'^Select Documents 11, 31(i), pp. 751-2.
mid., II, 3I(ii), pp. 752-3.
mid., 11, 31(iii), pp. 753-6.

^Ibid., II, 31(v), pp. 757-9.

II, 3!(vi), pp. 759-60.

II, 31(iv), pp. 756-7.

RELATIONS BETWEEN THE UNION AND THE STATES

eo9

meeting, the Secretariat of the Assembly circulated a statement which listed
side by side the items proposed to be included in the Federal List and the
items recommended as coming within the Union sphere in the first Report
of the Union Powers Committee'. In all some twenty-two additional items
were suggested, the more important of which were the requisitioning of land
for defence purposes, preventive detention for reasons of State, institutions
of national importance, the development of industries and mineral
development where development under federal control was declared by
federal law to be expedient in the public interest, superintendence and control
of all federal and provincial elections, jurisdiction and powers of ail courts
with respect to any matter in the Federal List, stamp duties in respect of
bills of exchange, cheques,, promissory notes, insurance policies and transfer
of shares, etc., terminal taxes on goods or passengers carried by railway or
air, and inter-unit trade and commerce.

The proposed Federal List was, after scrutiny, adopted with some
modifications on July 2. The only changes of consequence were the addition
of the words “foreign exchange” to the entry in the Federal List relating
to currency and coinage, and the recasting of the item relating to elections
so as to read “All Federal elections ; and Election Commission to superintend,
direct and control all Federal and Provincial elections”. So far as the tax
items were concerned, the committees recognized that the retention by the
Federation of the proceeds of aU the taxes mentioned in the Federal List
would disturb the financial stability of the units. Accordingly the committee
recommended that suitable provision should be made for an assignment or a
sharing of the proceeds of some of these taxes on a basis to be determined
by the Federation from time to time”.

The committees also agreed that there should be, as suggested in the fiiKt
Report of the Union Powers Committee, a provision in the Constitution on
the lines of section 51 (xxxvii) of the Australian Constitution’ for enabling
the units to cede wider powers to the Centre. At the same time they endorsed
the view of the joint sub-committee of the Union and Ihrovincial Constitution
Committees that, so far as the Indian States were concerned, the application
to them of the Federal List, where it went beyond the Cabinet Mission’s
statement, should be with their consent*.

The committees had little difficulty in settling the other two listS'; they
decided to adopt generally the Provincial and Concurrent Legislative Lists
of the Government of India Act, 1935, subject to such drafting changes as
might be necessary to bring them into conformity with the new Constitution.

'■Select Documents 11, 32, pp. 763-71.

"See further under “Financial Relations”.

’Matters referred to the Parliament of the Gommonwealth by the Parliamait or
Parliaments of any State or States, but so that the law shall extend only to States
by whose Parliaments the matter is referred, or which afterwards adopt the law.

^Select Documents 11, 32 and 33, pp. 763-5, 777-8.

610

FRAMING OF INDIA’S CONSTITUTION

The poly changes of substance recomnoiended were that (i) item 7 of the
Provincial List relating to provincial pensions should be omitted, (ii) the
distinction made between Parts I and II of the Concurrent List should
be dispensed with, and (iii) a new item “economic and social planning”
should be added to the Concurrent List. A suggestion by Munshi for the
addition of another item “coordination of research and higher education”
was rejected on the ground that “economic and social planning” was
comprehensive enough to cover this item’. Pattabhi Sitaramayya’s suggestion
for placing broadcasting in the Concurrent List also met with a similar fate.
The committees thought that the Centre should continue to have the exclusive
power to regulate broadcasting all over the country and accordingly decided
that the item should remain in the Federal List. They noted, however, that
this need not prevent the Provinces and States from operating their own
broadcasting stations^.

The legislative lists thus evolved and the other decisions reached by the
two committees at these joint meetings were incorporated in the second
Report of the Union Powers Committee, presented to the President of the
Assembly on July 5, 1947. The report recorded that, while the committee
was unanimously of the view that it would be injurious to the interests of
the country to provide for a weak central authority, it was, at the same
time, quite clear in its mind that to frame a constitution on the basis of a
unitary State would be a retrograde step, both politically and administratively.
Accordingly, it came to the conclusion that “the soundest framework for
our constitution was a federation with a strong Centre”. The committee
recommended that residuary powers rmder the new Constitution should vest
in the Centre. In the case of the Indian States, the application of the Federal
List, in so far as it went beyond the three subjects of foreign affairs, defence
and communications, would be with their consent : and residuary powers
would vest with the Indian States unless they consented to their being with
the Centre’.

The report came up for the consideration of the Assembly on August 20,
1947, and was the subject of an animated discussion lasting nearly two days.
Initiating the debate, Gopalaswami Ayyangar commented that the task of
federation-making in India was beset with problems which the framers of
federal constitutions elsewhere did not have to face. It required bringing
together into a. federal union areas which were under British sovereignty
before August 15, 1947 {i.e. the Governors’ Provinces and the Chief
Commissioners’ Provinces) as well as areas which in theory were independent
, but which were under the suzerainty of the British Crown {i.e. the Indian
States). Moreover, while the Provinces had to be provided for under a

“Eventually Munshi’s view was accepted— jee entry 66 of the Union List of the
Constitution.

^Select Documents II, 32, pp. 774-5.

Vbid., II, 33, p. in.

RELATIONS BETWEEN THE UNION AND THE STATES

611

scheme of government which, was not monarchical, .the States -had to come
into: the Federation and to remain there under a, monarchical form of
government. He, went on to, explain that the distinction made in the report
between the States and the Provinces as regards the quantum, of Jurisdiction
given to the Centre and the assignment of jurisdiction on residuary subjects
was necessitated by the situation as it then' existed : but his assessment ■ of
the prospects of building up an effective Union. with Provinces and States as
equal, partners was optimistic. The Indian Independence Act, ^ he said, had:
legally speaking cut off the political connection between the Government of
India and the Governments of the States and only partially retained the
economic connections. Fortunately, these connections had been restored and
an organic political and constitutional structure including the Indian States
had commenced to function from August 15 , 1947. The overwhelming body
of States within the geographical boundaries of India had acceded to the
Dominion and most of them had sent their representatives to the Constituent
Assembly. Eminent statesmen connected with the administration of Indian
States wanted a strong Centre. It had been taken as conceded that the
Indian States would cede jurisdiction to the Federation on a minimum
number of subjects, and the accredited constitutional advisers to the Indian
States had generally recognized the wisdom of agreeing to a wider range
of subjects for assignment to the Centre than defence, external affairs and
communications.

To dispel any impression that the legislative lists were unduly long or
tliat the committee had ‘‘stolen a number of items from the Provincial and
ConcuiTent Lists and put them in the Federal LisP’ Gopalaswami Ayyangar
said that if the lists were scrutinized and compared with the lists in the Act
of 1935 it would be difficult to find— “perhaps with one or two stray
exceptions” — any cases where the committee had encroached upon the
sphere assigned to the Provinces by that Act. Die committee had split up a
number of items of the 1935 Act into separate items. In some cases the
committee had adopted certain items from other constitutions, which were not
to be found in that Act. This made the Federal List longer but none of
these items could properly go into the Provincial or Concurrent Lisf.

.In spite of the mover’s well-argued speech, the report came in for a great
deal of criticism, though on divergent and at times conflicting grounds. Some
members urged that, having rightly recognized that the application to the
States in general of the Federal Legislative List tO' the e,xtent, that it went
beyond the Cabinet Mission’s statement, should be with their consent, the
committee should have carried the distinction to its .logical end and clearly

VoL V, pp. 35-42. also the three comparative tables of (i)
federal subjects as shown in the first Union Powers Committee Report, second Union
Powers. Committee Report,, and .Seventh Schedule of Government of India Act, 1935,
(2) provincial subjects as shown in the second Union Powers Committee Report and
Seventh Schedule of the .1935 Act Select Docwmenli' , II, 33(ii), ;,pp.,,', 785-95. '

612

FRAMING OF INDIA’S CONSTITUTION

indicated the items of the Federal List applicable to the States’: some other
members were equally emphatic that there was no justification for allowing
the States any more powers than were proposed to be given to the Provinces’.

Some strongly felt that the whole approach of the committee to the problem
of distribution of powers was wrong and vitiated by an obsession to make
the Centre responsible for everything. Representing this view K. Santhanam
observed that although he too was anxious to have a strong Government
for the country, his conception of the strength of the Centre was different
from that embodied in the report which provided, in his judgment, for almost
a unitary Centre. The strength of the Centre lay not only in adequate powers
in all-India subjects, but also in freedom from responsibility for those subjects
which were not germane to all India but which really should be in the
provincial field. Further, he was highly critical of the allocations of the
financial powers envisaged in the report : the Union Powers Committee had
put all taxation except land revenue and a few diminishing items like excise
on intoxicating liquors in the Federal List. Unless an equitable distribution
of the proceeds of the federal taxes was made by statute, the Provinces
would be “beggars at the door of the Centre”. Speaking in a similar vein,
A. Ramaswami Mudaliar (representing Mysore) emphasized that the cardinal
feature of the proposals made in the report was its taxation proposals. The
taxing items included in the Provincial List were not likely to yield much
and the recommendation that provision should be made for an assignment
or a sharing of the proceeds of some of the federal taxes was not only vague
and indefinite but also illusory as it left the whole thing to be determined by
the Federation : in that plight, provincial autonomy, even in the few subjects
that had been entrusted to a Province, would be of a poor kind indeed’.

The criticisms were answered, and the report defended vigorously, by some
prominent members of the Union Powers Committee. The distribution of
taxing powers between the Federation and the units, Alladi Krishnaswami
Ayyar observed, was a difficult and complicated problem in any federal
scheme of government and its consideration required that certain basic points
should always be kept in view. In the first place, it was an individual or a
corporation that would be taxed, though there might be two taxing agencies,
and there was no unlimited scope for taxation. Secondly, the industrial,
commercial and agricultural economy of the country was so closely knit
together that taxation in one sphere necessarily had repercussions in another.
Bearing these broad points in view he referred to conditions in Australia
and Canada where there was increasing recognition that, if taxation policy
was to be sound, more powers should be vested in the Centre. Alladi
Krishnaswami Ayyar readily conceded that it would be necessary for a
financial commissicm to be entrusted with the allocation of resources, so

’C. A. Deb., Vol. V, pp. 47-9 and 51.

TAW., pp. 53-5, and 99-101.

TAW., pp. 55-7 and 84-90.

RELATIONS BETWEEN THE UNION AND THE STATES

613

that the Provinces might get the necessary quota for the purpose of meeting
expenditure on various social programmes. He argued that on the whole
the system recommended in the report was an improvement on the scheme
of taxation in other countries*.

Another member of the committee, D. P. Khaitan, taking the same line
on sharing the proceeds of some of the federal taxes on a basis to be
determined by the Federation, said that the needs of the Provinces varied
from time to time and, according to the circumstances, the Central
Government had to see that a Provincial Government was not placed in any
difficulty. If a provision of this type had not existed under the 1935 Act, it
would not have been possible for the Central Government to go to the rescue
of Bengal in the very sad circumstances in which that Province found itself
in the great famine of 1943. B. L. Mitter, who with V. T. Krishnamachari
had represented the point of view of the Indian States in the Union Powers
Committee, said that the distinction made in the report between the States
and the Provinces was unavoidable. He added, however, that once the States
came in there was no doubt that gradually the States and the Provinces
would approximate to each other’.

Among other supporters was Balakrishna Sharma who observed that the
existence of a strong Centre in no way militated against the free growth of
the units. Replying to Santhanam’s plea for an equitable distribution of
financial resources, he said that it was already there, since the Provincial
List contained as many as 19 items, items 40 to 58, which authorized
Provinces to levy various taxes. G. L. Mehta impressed upon the Assembly
that the problem of federation-making in India was so unprecedented that
the Assembly could not possibly copy any model and had to build a federal
system responding to the peculiar needs and interests of the country. While
in most other countries a federation had been built up through independent
sovereign States coming together, in India there had been imder the British
a long tradition of a powerful Centre. At the same time, the country was
unfortunately too prone to fall a victim to fissiparous and disintegrating
tendencies, and it was essential to guard against them’.

In his reply to the debate, Gopalaswami Ayyangar repudiated as being
wholly without substance the criticism that the Union Powers Committee
had assigned to the Centre functions and financial resources which should
more appropriately have been assigned to the Provinces. For whether in
the lists prepared by it or in its recommendation regarding the distribution
of resources, the committee had strictly adhered to the scheme of the 1935
Act for the sound reason that that scheme was the product of a long
series of proceedings spread over several years. He agreed, however, that
as the report stood, it did not give the Assembly a full picture of what would

‘C. A. Deb., Vol. V, pp. 73-6.

’/W4., pp. 96-102.

’/Wrf., pp. 76-84.

614

FRAMING OF INDIANS' CONSTITUTION

be the final financial provisions in the new Constitution. It was accordingly
agreed that the whole question of the resources that could be tapped in
the country, their, distribution between the Centre and the units and the
machinery by which that distribution should be effected would first be
examined by an expert committee'.

The Assembly took up the consideration of the legislative lists on August 22,
1947. In. three sittings it could consider only the 'first 37 items of the
Federal List. 'Further consideration of the report was held , over and, in
fact, was not taken up againl

The Draft Constitution prepared ' by the Constitutional Adviser in
October, 1947 contained seven clauses (179-85) prescribing the distribution
of legislative powers. Some gave effect to specific recommendations made
by the Union Powers and the Union Constitution Committees, while others
were new. In either case, the proposed clauses generally followed, both as
regards their arrangement m/er se ns well as in their wording, the
corresponding provisions in the Government of India Act of 1935.

Clause 179 empowered the Federal Parliament to make laws for the
whole or any part of the territory of the Federation, as also laws having
extra-territorial operation: but a Provincial Legislature could make laws
only for the Province or for any part thereof.

Clause 180 provided, as recommended by both the Union Powers and
Union Constitution Committees, for the distribution of legislative powers
between the Federation and the Provinces : the Federal Parliament would
have exclusive power to make laws with respect to matters enumerated in
the Federal Legislative List, and a Provincial Legislature would have
exclusive power with respect tc matters enumerated in the Provincial
Legislative List; both the Federal Parliament and a Provincial Legislature
could make laws with respect to matters specified in the Concurrent
l..egislative List. This distribution was not to apply to the Indian States.
Clause 181 stipulated that the powers of the Federal Parliament to make
laws for a federated State or group of States would be subject to the terms
of any agreement with the Federation and the limitations contained therein^

Clause 182, which reproduced with some modifications section 102 of the
1935 Act, contained comprehensive provisions as to the action to be taken
by the Centre in' emergency situations and included provisions which
empowered the' Federal Parliament to make laws during an emergency for a

^C. A. Dek, VoL V, pp. 102-5. Regarding the appointment and recommendations
of the Expert Committee and other connected developments sec under ‘Tlnancial
Relations”.' '

-JMd, pp. 111-42 and 146-209.

Documents III, 1, pp. 74-7. The clause followed section '99 of the 1935 Act,
except that unlike the latter it did not subject the Federal Parliament’s extra-territorial
jurisdiction to any qualifications.

‘*C!auses 180 and 191 corresponded, respectively, to sections 100 and lO! of the
1935' Act'

RELATIONS BETWEEN THE UNION AND IHE STATES

615

Province with respect to any matter, even if enumerated in the Provincial
Legislative List. Clause 183 was on the lines of section 51 (xxxvii) of the
Australian Constitution : the Legislature cr Legislatures of one or more units,
whether a Province or a State, might, by resolution, authorize the Federal
Parliament to enact legislation for regidating any matter which otherwise
fell outside its jurisdiction. Sub-clause (2) stipulated that any Act so
passed by the Federal Parliament might, regarding any unit to which
it applied, be amended or repealed by an Act of the Legislature of
that unit*.

Clause 184 enunciated the rule that in the event of repugnancy between
a provincial law and a federal law. the latter wooild prevail and the former
would be void to the extent of the repugnancy. This rule was subject to
the exception that a Provincial Act on a Concurrent List matter would
prevail over a Federal Act on the same matter if the Provincial Bill had
been reserved for, and had received, the assent cf the President : but
notwithstanding such assent, the Federal Parliament could enact further
legislation on the same matter. Under sub-clause (3) of the clause the
principle of the federal supremacy applied to a federated State also, in so
far as a federal law extended to such a State“. Clause 185, which
corresponded to section 109(2) of the 1935 Act, provided that requirements
as to prior recommendations of the President or the Governor (as the case
might be) in respect of legislative measures were to be regarded only as
matters of procedure and the absence of any such recommendation would
not invalidate an Act so long as it subsequently received the assent of
the President or of the Governor.

In the Ninth Schedule of his Draft Constitution the Constitutional Adviser
reproduced the three legislative lists recommended by the Union Powers
Committee with such modifications as the Assembly itself had made in
some of the Federal items, a few drafting adjustments, and the addition
of two new items to the Federal List — one relating to the extension of the
jurisdiction of a High Court in a Province to any area outside the Province
and the other vesting the Federal Parliament with residuary powers of
legislation.

Subsequently, as a result of his discussions with eminent jurists and
constitutional experts abroad, B. N. Rau came to the conclusion that it
was necessary to have a provision in the Constitution enabling the Centre
to undertake legislation on matters falling in the exclusively provincial
sphere, whenever such a course was called for in the national interest.

‘A similar provision existed in section 103 of the 1935 Act, which, however,
applied only to the British Indian Provinces and not to the Indian States,

°C/. section 107 of the 1935 Act: under this section once such a provincial law
had received the assent of the Governor-General no Bill repugnant to its provisions
could be introduced in the Federal Legislature without the previous sanction of the
Governor-General in his discretion.

616

FRAMING OF INDIA’S CONSTITUTION

Accordingly, he proposed the addition of a new item (c) in clause 182(1)
of his Draft, empowering the Federal Parliament to make laws for the
whole or any part of the territorfes of the Federation with respect to any
matter enumerated in the Provincial Legislative List, if the Council of
States declared, by a resolution supported by not less than two-thirds of
the members present and voting, that it was necessary or expedient in the
national interest that the Federal Parliament should legislate with respect
to that matter. A new sub-clause (3-A) further provided that a resolution
so adopted might be revoked by a subsequent resolution passed by a
similar majority by the Council of States.

The object of the amendment, B. N. Rau explained, was to remove a
defect similar to the one which had been disclosed in the Canadian
Constitution. The requirement of a special majority of the Coimcil of
States in the proposed provision was intended as a safeguard against
unwarranted encroachment on the provincial sphere’.

The Drafting Committee deliberated on the principles governing the
distribution of legislative powers at its meetings held between January 26
and February 10, 1948. Besides adopting with some modifications the
provisions suggested by the Constitutional Adviser, the committee formulated
a number of new provisions, all of which were set out in Part IX,
Chapter I, of the February 1948 Draft Constitution as articles 216 to 232’.

Article 216 reproduced clause 179 of the Constitutional Adviser’s Draft,
ivith the main difference that the constituent units were now all described
as “States”. In spite of this change in nomenclature, a distinction continued
to be maintained between what used to be known as British Indian
Provinces and the Indian States, especially in regard to their relations with
the Union. The “States” were now divided into three classes: those
enumerated in Part I of the First Schedule, those enumerated in Part II and
those enumerated in Part III corresponding, respectively, to the Governors’
Provinces, Chief Commissioners’ Provinces and the Indian States’. Article 217,
which corresponded to clause 180 of the Constitutional Adviser’s Draft,
defined the legislative spheres of the Union Parliament and the State
Legislatures. Under the article, the Concurrent List and the State List were
made applicable only to the Part I States or the Governors’ Provinces. In
respect of Part II States (or the Chief Commissioners’ Provinces) the Union
Legislature had plenary power to make laws on all subjects irrespective of
the lists in which they were included, because they were to be centrally
administered areas. The position at the time in regard to Part III States

’Report by the Constitutional Adviser on his visit to the U.S.A., Canada, Ireland
and the U.K. jOuca/Menry III, 2, p. 227.

’Drafting Committee minutes, January 26, 28 to 30, February 3 to 6, 9 and 10,
1948, and Draft Constitution, February 21, 1948, articles 216 to 232. Select Documents
III, 5 and 6, pp. 444-92, 598-604.

‘Select Documents III, 6, First Schedule, pp. 644-6.

RELATIONS BETWEEN THE UNION AND THE STATES

617,

(or the Indian States) was that the internal constitutions of these States were
not to be settled by the Assembly. Accordingly, the article read ;

217., ( 1 ) Notwithstanding anything in the two next succeeding clauses,
Parliament has exclusive power to make laws with respect to any of the
; matters enumerated in List I in the ■ Seventh Schedule (in this Constitution
referred to as the “Union List”).

(2) Notwithstanding anything in the next succeeding clause. Parliament
and, subject to the preceding clause, the Legislature of any State for the
time being specified in Part I of the First Schedule also, have p^ower to
make laws with respect to any of the matters enumerated in List III In
the Seventh Schedule (in this Constitution referred to aS' the “Concurrent
.List”).

(3) Subject to the two preceding clauses, the Legislature of any State for
the time being specified in Part I of the First Schedule has, exclusive
power to make laws for such State or any part thereof .with, respect to

^ any of the matters .enumerated In List II in the Seventh Schedule (in this
Constitution referred to as the “State List”).

(4) Parliament has power to make laws with respect to any matter for
any part of the territory of India not included for the time being in Part I
or Part III of the First Schedule notwithstanding that such matter is a
matter enumerated in the State List.

Alladi Krishiiaswami Ayyar, a member of the Drafting Committee, was
against tlie scheme of draft article 217 . Since it had been- decided to vest
residuary powers in the Centre, the various items enumerated in the Union
List became merely illustrative of the general residuary pewers of the
Centre; the proper plan of distribution of legislative powers would be, he
thought, to define the powers of the units in the first instance, then' deal
with concurrent powers and deal ,lastly with the powers of the Union
Parliament. The view cculd not muster sufficient support ^in the committee.'
A majority of t,h,e members were inclined to think that the question was
merely one of form and it was, therefore, preferable not to disturb the
“existing arrangement”, ie., the scheme followed in section 100 of, the 1935.
Act and clause 180 of the Constitutional Adviser^s Draft. Though this did
not represent a difference in principle with Ms colleagues, Alladi,
Krishnaswa,mi , Ayyar , considered it nevertheless necessary to submit, to the
Constituent Assembly a separate note explaining his views on the subject
and proposing ,, an altern,ative texth

Article, 217 'was followed by seven new provisions,. ',0! these, articles 218,
220, 221 and 222, which dealt with .legislation^ regarding' the Supreme Court
and the High Courts, were considered unnecessary in the Drafting Committee

^Drafting Committee minutes, Feb. 5, 1948, and Draft Constitution, footnote to
article 217 and Appendix, The alternative text proposed by Alladi Krishnaswami
Ayyar covered draft articles 217 and. 223(1). ' Select Docnmenij III, 5 and 6, pp. 474,
598-9, 675-7.

618

FRAMING OF INDIA’S CONSTITUTION

by some of its members ia view of the demarcation of legislative jurisdiction
under article 217 read with the three legislative lists’. Article 219
empowered Parliament to provide for. the establishment of additional courts
for the better administration of Union laws.

Article 223 dealt with residuary powers of legislation — a matter which
the Constitutional Adviser had included in the Federal List. It provided
that Parliament had the exclusive power to make laws with respect to any
matter not enumerated in the Concurrent List or State List and that this
power included the power of making any law imposing a tax not mentioned
in either of those lists.

Articles 224 and 225 were included at the instance of the representatives
of Indian States to impose restrictions on the powers of Parliament to
legislate for Indian States. Tliese restrictions were ;

(1) Such rights as were possessed by the Indian States with respect to
posts and telegraphs could not be affected adversely by any Act of
Parliament unless they were extinguished by agreement between the
Government of India and the States or acquired by the Government of
India ;

(2) the power of Parliament to make laws for Indian States with respect
to telephones, wireless, broadcasting and other like forms of communication
would extend only to making of laws for regulation and control ;

(3) the power of Parliament to make laws with respect to corporations
could not be exercised with respect to corporations carrying on business
w'ithin a particular Indian State.

Article 225, following clause 181 of the Constitutional Adviser’s Draft,
expressly declared that Parliament’s power to legislate for the Indian States
or a group of Indian States would be subject to the terms of any agreement
entered into by that State or group of States with the Government of India
and the limitations contained in it. In other words, the power of Parliament
would be limited to matters accepted by these States and residuary powers
would remain with the States.

B. N. Rau’s suggestion for a provision to empower Parliament to legislate
with respect to any matter in the State List when it assumed national
importance was accepted by the Drafting Committee in article 226 ;

Notwithstanding anything in the foregoing provisions of this chapter, if
the Council of States has declared by resolution supported by not less
than two-thirds of the members present and voting that it is necessary
or expedient in the national interest that Parliament should make laws
with respect to any matter enumerated in the State List specified in the
resolution, it shall be lawful for Parliament to make laws for the whole
or any part of the territory of India with respect to that matter.

ITie Drafting Committee omitted the further provision contained in

’Footnotes to articles 218, 220, 221 and 222 and Alladi Krishnaswami Ayyar's
notes in the Appendix. Select Documents III, 6, pp. 598-9, 675-7.

RELATIONS BETWEEN THE UNION AND THE STATES 619

B. N. Rau’s letter that a resolution passed for this purpose by the Council
of States could be revoked by a subsequent resolution, also requiring a
two-thirds majority.

As regards Parliament’s power to legislate on State subjects during an
emergency, the committee redrafted these provisions. Article 227 vested
territory of India with respect to any of the matters enumerated in the
territory of India with respect to any of the matters enumerated in the
State List, while a Proclamation of Emergency was in operation. Any law
made in exercise of this power, which otherwise fell outside the competence
of Parliament, would cease to have effect on the expiration of six months
after the Proclamation had ceased to operate’. Article 228 provided that
the assumption of power by Parliament over a State subject under
articles 226 and 227 would not mean that the State Legislatures would be
barred from legislating on that subject, though, of course. State laws would
be valid only so far as they were not repugnant to Union laws made under
either article 226 or article 227. In other words, the position in such cases
would be analogous to that of items in the Concurrent List.

Alladi Krishnaswami Ayyar was of the view that where Parliament
had assumed legislative authority on a State subject in pursuance of a
resolution of the Council of States declaring this to be expedient in the
national interest, it was no longer necessary to retain concurrent legislative
powers in the States, as the very basis of the assumption of power by
Parliament was that the subject could no longer be regarded as one merely
of importance for the State but had assumed national dimensions^

Article 229 reproduced clause 183 of the earlier Draft with the important
modification that an Act of Parliament on a State subject made with the
consent of the Legislatures of one or more States could be amended or
repealed only by an Act of Parliament passed or adopted in the same
manner as the principal Act, and not, as envisaged in clause 183, by any
Act of the Legislature of any State to which it applied. This change, the
Drafting Committee pointed out, was in conformity with section 51 (xxxvii)
read with section 109 of the Australian Constitution”.

The next provision, article 230, declared that, notwithstanding the
distribution of legislative powers. Parliament would have unfettered power
to make any law for any State or a part thereof for implementing any
treaty, agreement or convention with any other country or countries.

Articles 231 and 232 reproduced with some modifications clauses 184 and
185 of the Constitutional Adviser’s Draft. Article 231 dealt with
inconsistency between laws made by Parliament and laws made by the
State Legislatures. Article 232 was a formal provision. It declared that

under the Chapter on Emergency Provisions.

’Draft Constitution, footnote on articles 226 and 228 and Alladi Krishnaswami
Ayyar’s notes in the Appendix, Select Documents III, 6, pp. 601-2, 675-7.

’Ibid; footnote to article 229(2).

620

FRAMING OF INDU’S CONSTITUTION

an Act of Parliament or of a State Legislature, once it had received assent,
would not be invalid merely on the ground that some previous
recommendation required by the Constitution was not given {previous
recommendation to introduction of Bills was mainly required in the case
of financial Bills).

The three lists of the Constitutional Adviser’s Draft enumerating legislative
powers were adopted by the Drafting Committee with some changes and
reproduced in the Seventh Schedule of its Draft Constitution as List I or
the Union List, List II or the State List, and List III or the Concurrent
List’. The more important changes made by the committee related to a
few items in the Union List and the Concurrent List. In the Union List, in
the entry dealing with preventive detention, the words “reasons connected
with defence, external affairs or the security of India” were substituted for
the words “reasons of States”, so as to avoid any conflict with entry I of
the State List relating to preventive detention for reasons connected with
the maintenance of public order’. The item relating to the maintenance and
control of the armed forces, as adopted earlier by the Constituent
Assembly’, was reproduced in entry 4 as follows :

The raising, training, maintenance and control of the naval, military and
air forces of the Union and their employment; the strength, organization
and control of the armed forces raised and employed in States for the
time being specified in Part III of the First Schedule.

In this connection the Chairman of the Drafting Committee, Ambedkar,
placed on record his strong feeling that the second part of the entry should
be deleted in order to preclude the Part III States from maintaining any
armed forces of their own*. Tlie committee also included in the Union
List a new entry “Stock exchanges and futures market and taxes other than
stamp duties on transactions therein”. This followed the recommendations
of the Expert Committee on the financial provisions of the Constitution’.

As for the Concurrent List, the Drafting Committee thought it desirable
to put into this list the whole subject of succession and not merely succession
to property other than agricultural land. The entry as drafted by the
Committee read :

Wills, intestacy, and succession, joint family and partition ; all matters in

'Drafting Committee minutes, February 10 and 11, 1948 and Draft Constitution,
Seventh Schedule. Select Documents III, 5 and 6, pp. 492, 498, 662-70.

^Ibid., footnote to entry 3 of the Union List Also see debate on the
corresponding item in the second Report of the Union Powers Committee (C. A.
Deb., Vol. V, pp. 118-25) when a strong plea for restricting federal authority in
the matter to reasons of State connected with defence and external affairs was made
by H. K. Maheshwari, a representative of one of the Indian States groups.

’C. A Deb., Vol. V, pp. 126-336.

‘Draft Constitution, footnote to entry 4 of the Union List, Select Documents
III, 6, p. 662.

‘Ibid., Entry 79 of the Union List and footnote thereto, p. 665.

621

RELATIONS BETWEEN THE UNION AND THE STATES

respect of which parties in judicial proceedings were immediately before
the commencement of this Constitution subject to their personal law.

Another material change made by the Drafting Committee related to the
compulsory acquisition and requisitioning of property. Acquisition in the
Union List and compulsory acquisition of land for purposes other than
purposes of the Union was included in the State List. The legislative
power in regard to the principles on which compensation was to be
determined for property acquired or requisitioned whether for purposes of
the Union or. for purposes of a State was included in the Concurrent
Legislative Listh

The committee expressed a definite opinion that if there was to be a
uniform personal law, e.g., for Hindus, throughout India, all the matters
included therein at that time should be put into the ConcuiTent list®.

When the Draft Constitution was circulated for eliciting opinion, a large
number of comments and suggestions with regard to the provisions relating
to the distribution of legislative powers between the Union and the States
were made by members of the Assembly, members of Provincial Legislatures,
Ministries of the Government of India, eminent men in public life and
others. Alladi Krishnaswami Ayyar, who had already given expression to
his views on the proper arrangement of articles 217 and 223(1), suggested
some further drafting changes in the provisions contained in the chapter
on legislative relations to bring out clearly the position of the Part III
States (the Indian States) in the matter of distribution of legislative powers.
He also referred to entry 77 of the Union List — “provision for dealing with
grave emergencies in any part of the territory of India affecting the
Union”. He suggested either that the entry should specifically mention
the articles of the Constitution dealing with emergency provisions or
that it should be omitted altogether; its retention might be open to
the construction that there was an omnibus power given to Parliament to
deal with emergencies’.

A number of amendments were jointly put forward by K. Santhanam,
Ananthasayanam Ayyangar, T. T. Krishnamachari and Mrs. Durgabai. One
of these sought the replacement of articles 217 and 233(1) by a single
provision on the lines suggested by Alladi Krishnaswami Ayyar*. Three
others aimed at securing, respectively, the omission of article 226
authorizing Parliament to legislate on a State subject in the national interest;
the addition of a proviso to article 230. that if any law passed by Parliament,
which purported to give effect to any treaty, or international agreement or
convention, related to a matter included in the State List, it would be

'Draft Constitution, footnote to entry 43 of the Union List, p. 664.

‘Ibid., footnote to entry 7 of the Concurrent List, p. 669.

®Comments and Suggestions on the Draft Constitution, Select Documents IV, l(i),
pp. 226-7,305.

pp. 255-7.

622

FRAMING OF INDIA’S CONSTITUTION

valid only to the extent that it was essential to give effect to the treaty etc.;
and the deletion of clause (2) of article 231, which would enable a State
to pass laws repugnant to Central laws in respect of concurrent matters.
Ihe first two of these amendments were intended to strengthen the position
of the units in the legislative field. With the same end in view, another
member of the Assembly, Ramalingam Chettiar suggested, by an amendment
to article 223, that residuary powers of legislation might be shared between
Parliament and the State Legislatures. He also proposed an amendment
to clause (2) of article 229 so as to make State Legislatures competent to
repeal or amend any Act with respect to a State subject passed by
Parliament with the consent of those Legislatures’. There was in addition
a large number of amendments to the entries in the legislative lists — a
number of these emanating from the Drafting Committee’.

The proposed scheme of distribution of powers also came in for some
adverse comments in a joint memorandum representing the point of view
of the Indian States, which was submitted to the Assembly by
V. T. Krishnamachari and others. The memorandum pleaded for a clear
recognition in the Constitution that the Part III States would retain all
subjects and powers other than those expressly ceded to the Union. This
meant, they explained, that while the State List and the Concurrent List
would not be applicable to the Part III States, even the Union List would
apply to them only in respect of such items as were accepted as essential
to the greater interests of India as a whole. Further, describing articles 226
and 230 as anti-federal in character, they suggested the deletion of the
former and the modification of the latter on the lines of section 106(1) of
the Government of India Act, 1935, so that the Union Parliament would
not, by reason only of its power of implementing treaties and international
agreements, have power to make any law for a Part I or Part III State
except with the consent of the Governor or the Ruler^. In a supplementary
memorandum they suggested some amendments in the Union List. For
instance, as regards entry 4, they desired that the Union’s power to deal
with the organization and control of the armed forces of the Part III States
should extend only over such of these forces as might by agreement be
earmarked for service with the Union forces. Again, with regard to
entries 13 and 14, relating, respectively, to the implementing of decisions
made at international conferences, and war and peace, they suggested the
qualification that, in so far as the Part III States were concerned, any
Union decision falling imder these entries could be implemented only with
the consent of the States. By another amendment directed at entry 19, they
wanted to provide that the Legislatures of Part III States would be

^Comments and Suggestions on the Draft Constitution, Select Documents IV, l(i),
pp. 258-64.

Hbid., pp. 293-328.

’Ibid., pp. 213-5.

RELATIONS BETWEEN THE UNION AND THE STATES

623

competent to make laws regulating citizenship for the purposes of the Stated
So far as the general public and the press were concerned, article 226
was the most criticized provision in the chapter on legislative relations. The
substance of this criticism was that this article would be out of place in
a federal system and the provision' of article 304 relating to the amendment
of the Constitution would lose all its significance if article 226 was retained.
As regards the other provisions of the chapter and of the legislative lists,
Jaya Prakash Narayan pleaded, as did Ramalingam Chettiar, for a sharing
of residuary powers between the Union and the unitsl
Some amendments suggested by members of the Madras Legislative
Assembly also revealed a measure of opposition to the provisions , of
article 226 and to the assignment of residuary powers to the Centre. They
sought an alteration of the actual allocation of legislative powers in favour
of the units by changes in the legislative lists. Three members of the Bihar
Legislature considered the provisions of article 229, vesting in Parliament
power to legislate for one or more States by consent, “retrogade and
undesirable” for the reason that the State Legislatures were not empowered
to repeal or amend the laws made by Parliament in exercise of the said
poweri.

The comments of the Cehtral Ministries related mostly to the entries in
the legislative lists. The Ministry of Industry and Supply thought that
there was overlapping in the Union List between entry 5 relating to
industries declared by Parliament by law to be necessary for the purposes
of defence or for the prosecution of war, and entry 64 providing for
development of industries under Union control if such control was
considered expedient by Parliament in the public interest. It therefore
suggested the amalgamation of the two entries; the legislative power of the
Union would, according to this proposal, extend to all industries whose
development or control was declared by Parliament to be necessary or
expedient in the public interest. The. Ministry also proposed the addition
of a new entry in the .Union List giving power to the Union to
regulate trade and coininei’ce in respect of (a) products ■ of industries
subject to Union regulation and (b) any other goods- whose regulation
similarly was considered by Parliament to be necessary or , expedient in the-
public , interesf.

, The Ministry of Works, Mines and Power felt that petroleum' , and its ■
products, and oilfields and mineral oil development, were of vital importance'
to the whole country, and accordingly, suggested a redraft of entry 63 of

^Comments and Suggestions on the Draft Constitution, Select Documents IV, l(i),
np. 225-6. ' . , . . . .

■ p 26 L

^Proceedings, Madras Legislative Assembly, April 26, 27, 28, 1948 and ihe Bihar
Legislature '(Not printed).

^Select ■Dacufnents-W'^ l(i), pp. 294-5.,

624

FRAMING OF INDU’S CONSTITUTION

the Union List, to make these matters the exclusive concern of the Union.
The Ministry also pressed for the enlargement of the scope of entry 74 of the
Union List from “development of inter-State waterways” to “development
of inter-State rivers and river valleys” so that the Centre could assume
overall control over river valleys essential for multi-purpose river valley
development^.

The Ministry of Information and Broadcasting wanted the sanctioning of
cinematograph films to be transferred from the Concurrent List to the
Union List. The decentralized system in existence, according to which the
censoring of films was a provincial responsibility, had proved to be
unsatisfactory from the point of view alike of producers and importers of
films and the public. Besides, it was contrary to the interests of public
policy”.

The Ministry of Agriculture was disappointed that under the Efraft
Constitution the position of agriculture was in no way better than in the
1935 Act which treated it as a purely provincial subject. The worsening
of the food supply position during World War II and the difiiculties of
feeding the ever-increasing population of the country, the Ministry urged,
made it abundantly clear that in the national interest the Centre should
play a more active role in the sphere of agricultural development. To
achieve this object, it suggested the addition to the Union List of a new
entry, namely, “Coordination of the development of agriculture including
animal husbandry, forestry and fisheries”, and the inclusion in the
Concurrent List of the subject of reclamation of waste lands on a large
scale, forest laws and fishery laws’.

In a letter dated April 28, 1948, Maulana Azad, Minister, for Education,
emphasized the imperative need of “central guidance, if not central control”
in the sphere of education to combat fissiparous tendencies in the country.
He suggested the incorporation of suitable provision in the Constitution
so that all public and private educational institutions in the country could
be subject to the supervision of the Union Government in accordance with
law. The intention was that while administration and management would
be with State Governments, the Union Government would reserve to itself
general supervision. Azad also suggested a provision for earmarking 15 per
cent of the Central expenditure. 25 per cent of State expenditure and 35 per
cent of the expenditure of local bodies for education, science and culture*.
The Ministry of Health was generally opposed to any distinction being
made between Part I and Part III States in regard to the scope of the
Union’s legislative powers”.

‘‘■Select Documents IV, l(i), pp. 300-1, 304.
pp. 326-7.
pp. 310-7.

*Ibid., pp. 285-6.

“Letter from the Ministry of Health, October 21, 1948 (not published).

RELATIONS BETWEEN THE UNION AND THE STATES 625

The Ministry of Labour felt that in view of entry 64 of the Union List,
under which the Centre could conceivably assume control over “practically
all the major industries of the country”, it seemed illogical to leave
employment policy entirely to the control of the units. To correct this
imbalance the Ministry suggested that “unemployment” might be transferred
from the State List (entry 41) to the Concurrent List*.

Meanwhile the Special Committee at its meeting held on April 11, 1948,
recommended some far-reaching changes in article 226, namely that a
resolution authorizing Parliament to legislate with respect to a State subject
in the national interest should not be moved in the Council of States
“without prior consultation with the Governments of the States concerned”,
that it would have to specify the period during which Parliament was to have
the power thus granted, and that this period was not to exceed three years,
with the stipulation that further extensions for not more than three years at a
time could be made by fresh resolutions passed by the Council of States in a
like manner. The Special Committee did not agree with the Drafting
Committee’s recommendation that the principles of compensation should
in all cases of acquisition of property be in the Concurrent List, and
decided by a majority that the power to lay down the principles of
compensation should vest in Parliament or the State Legislature according
as whether an acquisition was for the purposes of the Union or for the
purposes of a Statel The changes in article 226 suggested by the Special
Committee were accepted by the Drafting Committee which accordingly
proposed an amendment to modify the articled

All the amendments, comments and suggestions on the Draft Constitution
received in the Assembly Secretariat were closely scrutinized by the
Constitutional Adviser. In regard to the proposal for recasting and
combining articles 217 and 223(1), originally suggested by Alladi
Krishnaswami Ayyar and supported by K. Santhanam and others,
B. N. Rau observed that the suggested redraft did not adequately provide
for cases in which there was overlapping of matters falling within more than
one of the lists. On the other hand, under article 217, as it stood, the
Union List was clearly assured of a position of dominance, so that in any
case of overlapping the Central law would prevail over the State law.
Moreover, since the provisions of the article were based on section 100 of
the 1935 Act, their meaning and implications had been fairly well established
by judicial decisions, and a new form of words would unsettle a familiar
scheme without any clear compensating advantage.

Again, the proposals to amend article 223 with a view to provide thf
States with concurrent jurisdiction with the Union over residuary matters,
B. N. Rau pointed out. ran counter to the recommendation of the Union

^Select Documents IV, l(i), pp. 318-20.

Hbid., rV, Kiii), p. 411.

TOd., IV, I(i), p. 262.

626

FRAMING OF INDIA’S CONSTITUTION

Powers Committee that residuaiy powers should vest in the Centre. As for
the criticisms of article 226 and the demand for its deletion, B. N. Rau.
who had initially put forward the idea embodied in the provision, pointed
out that the power to legislate with respect to a matter in the State List in
the national interest could be exercised by the Centre only when the
Council of States, which represented the units of the Union, had passed
the required resolution by a two-thirds majority. Moreover, under the article
as proposed to be amended by the Drafting Committee the resolution itself
might limit the period during which the power was exercisable by the
Centre. Therefore, the effect of the resolution would not necessarily be as
far-reaching as an amendment of the Constitution,

Referring to AUadi Krishnaswami Ayyar’s view that when a State subject
assumed national importance it should be put into the Union List rather
than the Concurrent List, B. N. Rau said that the Drafting Committee did
not consider it necessary to go so far, for the supremacy of Union
legislation would be ensured even if the subject was placed on the same
footing as a Concurrent List subject. Dealing with the amendment to
article 230 suggested by K. Santhanam and others, he expressed the view
that the proposed proviso was hardly necessary, since the power conferred
by the article might be exercised by Parliament only in so far as the
exercise of such power was necessary to implement a treaty, agreement or
convention*.

In regard to the entries in the lists of the Seventh Schedule, B. N. Rau
expressed himself against the proposal of the Ministry of Industry and
Supply to combine entries 5 and 64 of the Union List dealing respectively
with the industries necessary for defence and development of industries in
the public interest. He felt that it was necessary to retain entry 5 as doubts
might arise whether the words “in the public interest” would cover the
purposes of defence. He saw no objection to the suggestion of the Ministry
of Works, Mines and Power for enlarging the scope of entry 74 of the
Union List so as to cover the development of inter-State rivers and river
valleysl

When the Drafting Committee reassembled on October 18, 1948, to
examine the various comments and suggestions on the Draft Constitution
and to settle the amendments which it would support, the only provision
in the chapter on legislative relations which occasioned some serious
rethinking was article 226 enabling Parliament to legislate on a State subject
in the national interest. The committee felt that it was not necessary to
dilute the provision to the extent of the suggestion made by the Special
Committee that there should be previous consultation with the States. It
decided therefore to dispense with the condition that a resolution enabling

^Select Documents IV, l(i), pp. 256-64

Wd, pp. 295, 304.

RELATIONS BETWEEN THE UNION AND THE STATES

627

Parliament to undertake legislation on a matter assigned exclusively to
the States could not be moved in the Council of States without prior
consultation with the State Governments. Another change proposed by the
committee was the replacement of the words “any State or part thereof” in
article 230 — ^which gave Parliament overriding power to enact legislation for
implementing treaties and agreements — ^by the words “the whole or any
part of the territory of India”.

In tire Seventh Schedule, apart from drafting improvements, the more
notable changes decided upon were ; (1) the extension of the Union’s
jurisdiction to the establishment of standards of quality for agricultural
produce ; (2) bringing petroleum and other dangerously inflammable liquids
and substances wholly under the control of the Union; (3) fuller and wider
powers for the Union over the development of inter-State rivers and inter-
state waterways and (4) the manufacture, supply and distribution of salf .
The committee also accepted Alladi Krishnaswami Ayyar’s suggestion for
deleting entry 77 of the Union List relating to provision for dealing with
grave emergencies.

As for the other two lists, it was decided to take away “unemployment” and
the entry regarding “inquiries and statistics” from the State List and transfer
them to the Concurrent Lisf, and to add two new entries to that list,
namely, “social insurance and social security” and “commercial and
industrial monopolies, combines and trusts”. The amendments, some of
which were obviously intended to meet at least partly the viewpoint of certain
Central Ministries, were indicated in the October 1948 reprint of the
Draft Constitution®.

Before the provisions defining the constitutional relations and the
demarcation of powers between the Union and the States were considered
by the Constituent Assembly, there was a lengthy discussion of the
federal scheme on Ambedkar’s motion for the consideration of the Draft
Constitution. In his speech on November 4, 1948, introducing the Draft
Constitution, Ambedkar dealt at length with the salient features of the
proposed federation and the criticisms that had been levelled against it
since the publication of the Draft Constitution ; he maintained that the
Draft Ccnstitution embodied an undoubtedly federal constitution inasmuch
as it sought to establish a dual polity consisting of the Union at the Centre
and the States at the periphery, each endowed with sovereign powers to be
exercised in their respective fields. It had however certain distinctive
features differentiating it from other federations. Thus, the Draft
Constitution made it possible for the proposed Indian Federation to be

'The entries involved were entries 61, 63, 74 and 76 of the Union List of the
Draft Constitution.

“The entries affected were entries 41 and 64 of the State List and entries 27
and 36 of the Concurrent List of the Draft Constitution.

^Select Documents TV, pp. 320, 323, 325, 328.

628

FKAMING OF INDIA’S CONSTITUTION

converted into a unitary State in times of war or of grave emergencgr*.
Again, the proposed Constitution provided a number of devices — some taken
from the Australian Constitution while others were new— for overcoming
the rigidity inherent in federalism. These were, inter alia, vesting ihe
exclusive powers of legislation in Parliament over a wide range of matters;
placing fundamental laws, civil as well as criminal, under concurrent
jurisdiction to ensure uniformity in all basic matters ; a comparatively easy
amending process^ ; and the power given to Parliament to legislate, subject
to certain requirements and conditions, on exclusively State subjects even
in normal timesl Other special features were a single judiciarj', certain
common all-India civil services ; and a single Indian citizenship^.

Refuting the criticism that the Centre had been made too strong,
Ambedkar maintained that the Draft Constitution had struck a fair
balance between the claims of the Centre and the units. While the Centre
was not given more responsibilities and power than were strictly necessary,
conditions in the modern world rendered centralization of power inevitable
and that trend was bound to operate in India, irrespective of the provisions
of the Constitution. He accepted the validity of the criticism that the
Draft Constitution had one sort of constitutional relationship between the
Centre and the Provinces and another between the Centre and the Indian
States. In fact, he considered it “very unfortunate” and even “dangerous
to the efiSciency of the State” that the Indian States should not be subject
to the authority of the Union to the same extent as the Provinces ; that they
should be able to frame their own constitutions; and what was worse and
might lead to the break-up of the unity of India and the overthrow of the
Central Government, that they should be permitted to maintain their own
armies. The Drafting Committee very much wished to do away with these
disparities, but it was bound by the decisions of the Constituent Assembly
which in turn was bound by the agreements arrived at between the two
negotiating committees, one representing the Assembly and the other
representing the Princes®. Nevertheless, Ambedkar felt there was no reason
to despair of the situation. The integration of the Indian States had already
made rapid progress and it was to be hoped that before the adoption of the
Constitution the Assembly would be able to wipe out the differences betw'een
the Provinces and these States'.

Notwithstanding Ambedkar’s ludd explanation, criticism persisted of tlie

^See chapter on Emergency Provisions.

^See chapter on Amendment of the Constitution.

'The reference is obviously to draft articles 226 and 229 (articles 249 and 252
of the Constitution).

‘See chapters on Citizenship, Judiciary, and Public Services and Public Service
Commissions.

‘See chapter on the Indian States.

‘C. A. Deb., Vol. VII, pp. 33-7 and 42-3.

RELATIONS BETWEEN THE UNION AND THE STATES

629

form of federal polity embodied in the Draft Constitution. Many members
who believed in decentralization expressed their disappointment with the
scheme of Union-State relations. The Draft Constitution, the protagonists
of States’ rights contended, actually provided for a formidable unitary
constitution and reduced the States to the position of “glorified district
boards”. Some of them, like Mahboob Ali Baig and N. G. Ranga, even
feared that the emphasis on centralization, and the facility with which the
Central Government could convert the federal system into a unitary one
might lead to totalitarianism and to the negation of democracy^
K. Santhanam took particular exception to the e.xpansion of the Concurrent
List as tending to blur the distinction between the Centre and the units.
It was an inevitable tendency in all federal constitutions, he added, tliat
in course of time die federal list should grow and the concurrent list
fade out, because once the central legislature assumed jurisdiction over a
particular matter, the jurisdiction of the state or provincial legislature would
go outl

On the other hand, there were members firmly convinced of the need for
a strong Centre in the circumstances of the country and in view of her past
history. Representing this point of view, Frank Anthony urged giving the
maximum possible powers to the Centre in the interest of the integrity and
cohesion of the nation. In partictdar. he wanted to see education and health
brought under the control of the Centre and at least some measure of central
control introduced over police services throughout the country. Brajeshwar
Prasad, who was wholly opposed to the very concept of federalism, warned
that with the setting up of semi-sovereign States centrifugal tendencies would
break up Indian unity*.

The distinction made in the Draft Constitution between the Part I and
Part III States (the Governors’ Provinces and the Indian States) encountered
widespread opposition in the Assembly with several members pleading for
the removal of the distinction*.

Intervening in the debate on November 8, 1948, AUadi Krishnaswami
Ayyar observed, in reply to the critics of centralization, that all that the
Draft Constitution had done was to take note of the inevitable tendency
in every modem federation in the direction of strengthening the federal
government and to make suitable provisions for the purpose, instead of
leaving it to the Supreme Court, as in the United States, to stretch the powers
of the Centre by a process of judicial interpretation. Referring to Santhanam’s
criticism of the Concurrent List, he said that the existence of the list in no

*C. A. Deb.. Vol. VII, pp. 296 and 350.

“/iiU, p. 263.

‘Ibid., pp. 227-8 and 371-4.

'See speeches of K. Santhanam (ibid., pp. 264-5), R. K. Sidhva (ibid., p. 266),
Ram Sahai and Jai Narain Vyas, both representatives of Indian States (ibid., pp.
267-70), Shibban Lai Saxena (ibid., p. 286) and Hussain lma.m (ibid., p. 302).

630

FRAMING OF INDIA’S CONSTITUTION

way detracted from the federal character of the Constitution, since the States
had their own independent sphere in respect of matters enumerated in List
II. Moreover, the Concurrent List mainly dealt with matters of common
concern, the need for uniformity in regard to which was apparent from the
fact that even the Indian States had found it necessary to adopt the codes
of civil and criminal law enacted during British rule’.

The provisions of the chapter on legislative relations in the Draft
Constitution were considered by the Assembly on June 13, 1949. Articles
218, 220, 221 and 222 were dropped and articles 216, 219, 223, 227 and 228
were adopted as proposed, without any discussion. Article 217, defining the
subject-matter of laws made by Parliament and the State Legislatures, was
also adopted, subject to a small but significant amendment which made the
Concurrent List and the State List applicable also to the Part III States.
Similar changes were made in article 231, enunciating the rule of repugnancy,
and in the last provision of the chapter — article 232. These notable advances,
which in effect placed Part III States on the same footing as Part I States
in regard to the general scheme of legidative relations, were made possible
by the remarkable progress in the political integration of the Indian States
with the rest of the country, and were readily approved by the Assembly.
Consideration of articles 224 and 225, which specified important exceptions
to Parliament’s right to legislate for Part III States, and gave these States a
“contracting out” right in respect of Parliament’s legislative jurisdiction, was
held over on Ambedkar’s suggestion^

The only provision which gave rise to any appreciable controversy in the
Assembly was article 226 which gave power to Parliament, by a resolution
of the Council of States, to legislate on State subjects in the national interest.
Ambedkar moved an amendment restricting the scope of this power. Such
a resolution would, to begin with, remain in force only for a period not
exceeding one year ; and the life of the resolution could only be extended
further, for a period of one year at a time by subsequent resolutions passed
by the Council of States in the same manner as the original resolution. A
law made by Parliament which Parliament would otherwise not be competent
to enact would, to the extent of the incompetency, cease to have effect on
the expiration of six months after the Council of States resolution ceased
to be in force, except as respects things done or omitted to be done before
the expiration of that period. It was generally conceded that these
amendments took away much of the sting noted in the original article by
the protagonists of State autonomy. Nevertheless the provision cams in
for considerable criticism. Shibban Lai Saxena and Mahavir Tyagi felt
that the amendments considerably detracted from the usefulness of the
provision for the purpose for which it was intended. The process by which

>C. Dei.., Vol. VII, pp. 335-6.

VAM. VoI. Vin, pp. 793-9, 810, 813-5.

RELATIONS BETWEEN THE UNION AND THE STATES

631

Parliament could be authorized to enact legislation on a State matter was,
it was contended, sought to be made unduly cumbersome. Moreover, no
major scheme could be undertaken by the Centre on the remote chance of
securing a two-thirds majority vote in the Council of States every year.

On the other hand, other members, including H. V. Pataskar, O. V.
Alagesan and B. M. Gupte, continued to regard the article as objectionable
and inconsistent with the concept of a federal distribution of powers. The
provision, they thought, was unnecessary in view of article 229, under which
the State Legislatures could always authorize Parliament to make laws on
a State subject, and in view of Parliament’s own independent and unfettered
power under, article 227 to encroach on the State List in times of emergency.
Again, if the intention of the article was that in normal times Parliament
should be able to invade the State List without reference to the wishes of
the State Legislatures, then the provision, the members felt, was certainly a
“mischievous” one*.

Supporting the article, T. T. Krishnamachari dealt at length with the
criticism that it was anti-federal. Explaining that the article as sought to
be altered by Ambedkar’s amendment was totally different from the original
article and would not be capable of abuse, the mischief, he said, if at all
there was any, would be limited to a short period of one year ; and the very
fact that it was to be so limited would itself offer no temptation to the Centre
using it to “augment” its power: and. if it was used at all, it would be used
for a valid and definitely useful purpose. He referred to the checks which
the units could exercise through their representatives in the Council of
States ; there was enough scope for the Provinces or States to tell them that
such Central powers should not be renewed. Differentiating between articles
226 and 229, he said that the latter article was intended primarily to provide
for co-ordinate action in matters in which Provinces were themselves interested;
more often than not it would happen that only two Provinces were interested,
and an enabling provision was made so that there might be coordinating
legislation by the Centre. That apart, action under article 229 would
necessarily involve much time, while the object of article 226 was to provide
for situations where the Centre wanted urgent action to be taken on a
State matter in circumstances when the emergency provisions need not and
could not be invoked. At the end of the debate, Ambedkar’s amendment was
adopted and the article, as amended, was voted to stand as part of the
Constitution^

Article 229 also evoked some discussion. But criticism was confined to
clause (2) which laid down that an Act relating to an exclusively State
matter made by Parliament at the request of one or more State Legislatures
could be amended or repealed only by Parliament. An amendment, proposed

’C. A. Deb., Vol. VIII, pp. 799-8(».
pp. 802-6 and 809-10.

632

FRAMING OF INDIA’S CONSTITUTION

by Tajamul Husain, sought to provide that any such Act could also be
amended or repealed by any one of the concerned State Legislatures.
K. Santhanam appreciate that, once responsibilities had been incurred by
two or more States in pursuance of a law, it should not be possible for a
single State to withdraw from such obligations and responsibilities; but he
felt that it would have been better to provide in clause (2) that, if all the
States concerned wanted the law to be amended or repealed, Parliament
would do so. As clause (2) stood, he said, it might make the whole article
inoperative, because no State would like to get into a situation from which it
could not get out.

Ambedkar proposed an amendment seeking to modify clause (1) so that
Parliament’s power to make a law under the provision could be invokoi
only if the Legislatures of two or more States (and not “one or more
States”, as provided in the clause as it stood) had passed resolutions to that
eifect. Referring to Santhanam’s suggestion, he pointed out that under
clause (2) of the article the repealing or amending Act had to be passed or
adopted in like manner as the original Act. He said that if the State
Legislatures in whose interest the legislation was pa^ed agreed by a resolution
that such legislation be amended or repealed. Parliament would be bound
to do so. Ambedkar’s amendment was accepted by the Assembly and the
article, as amended, added to the Constitution*.

Article 230, empowering Parliament to make laws on all matters for the
purpose of giving effect to treaties and international agreements, was adopted
without any discussion, but with a slight change in its wording — through the
replacement of the words “for any State or part thereof’ by the words “for
the whole or any part of the territory of India”'.

The consideration of the legislative lists, on the contents of which depended
the scope of the respective legislative powers of the Union and of the States,
was taken up by the Drafting Committee in June, 1949. The task was not
free from difficulties as the number of suggestions for changes in the lists
had become formidable. Several Central Ministries, besides reiterating their
earlier demands, had come forward with fresh proposals seeking further
accretions to the powers to be assigned to the Union’.

‘C. A. Deb., Vol. VIII, pp. 810-2.

’Ibid., p, 813. The unopposed acceptance of article 230 was in marked contrast
to the heated discussion which a similar provision in the second Report of the
Union Powers Committee (item 14 of the Federal List) had evoked in the Assembly
earlier; see C. A. Deb., Vol. V, pp. 150-62. Later, on October 14, 1949, the Assembly
adopted another amendment to the article, moved by T. T. Krishnamachari, which
enlarged Parliament’s powers under the article to the enactment of laws for
implementing any decision made at any international conference, association or other
body: C. ,4. Deb., Vol. X, p. 277.

^See statements containing amendments suggested by Ministries of the
Government of India to the Seventh Schedule to the Draft Constitution. Select
DocKwenrs IV, 15(ii) (a), pp. 631-56.

RELATIONS BETWEEN THE UNION AND THE STATES

633

On the other hand, some Provincial Governments were keen on securing
changes in the allocation of powers in such a manner as to secure increased
powers for the States. The Government of West Bengal desired that certain
matters which were essentially of State concern, such as provision of a fire
service and State pensions, should be specifically mentioned in List II, as they
would otherwise automatically fall within the exclusive sphere of the Centre
under its residuary powers. It also suggested the transfer of a number of
subjects, including deep-sea fishing and control of stock exchanges and
futures markets, from the Union List to the Concurrent List. The Government
of Madras expressed its opposition to certain amendments which sought to
take away from the States legislative powers with respect to corporations
whose objects were confined to one State and matters relating to religious
institutions*.

The Ehrafting Committee at this stage considered it proper that it should
consult the Governments of Provinces and also some of the Indian States
on various matters which affected Union-State relationship under the new
Constitution. Accordingly, a conference of the Premiers and Finance
Ministers of the Provinces and of some of the Indian States was convened
in July, 1947, and at this conference various issues relating to the distribution
of revenue between the Centre and the States, the assumption of plenary
powers by the Union in circumstances of emergency, the suggestions made in
regard to the legislative lists and other cognate matters were discussed.

So far as the legislative lists were concerned, some of the changes suggested
gave rise to keen controversy*. An amendment had been suggested by the
Ministry of Education, which sought to add to the Union List a new entry'
dealing with supervisory control of post-secondary educational, scientific
and technical institutions for the purpose of coordination and maintenance
of standards. Govind Ballabh Pant, the United Provinces Premier, urged
that it was not a sound proposition to empower the Centre to prescribe the
standards of higher education and to place on the units the responsibility
of meeting the necessary expenditure. But opinion generally was in favour
of letting the Centre have a say in regard to the coordination and maintenance
of standards of higher education. Nehru pleaded forcefully that some such
provision was indispensable to check the growing tendency towards a lowering
of the standards of university education which was already discernible in
certain parts of the country. The Mysore Premier (K. C. Reddy) felt that
the proposed provision was unexceptionable but for the use of the words
“supervisory control” which might lead to the impression that the provision

^Suggestions by the Government of West Bengal for the amendment of the
Seventh Schedule; and suggestions by the Government of Madras for the amendment
of the Seventh &hedule. (Not reproduced.)

“Minutes of the meetmgs of the Drafting Committee with the Premiers, July 21
and 23, 1949, Select Documents IV, 15(iii), pp. 683-5, 695-6. (Proceedings not

reproduced.)

634

FRAMING OF INDIA’S CONSTITUTION

was intended to include “administration” also and not merely the maintenance
of standards. Ultimately, it was agreed to recast the entry as “Coordination
and maintenance of standards of higher educational, scientific and technical
institutions”.

A more keenly debated subject was whether, as suggested by the Ministry
of Industry and Supply, a new entry relating to trade and commerce in, and
the production, supply and distribution of, any goods the control of which
by the Union was declared by Parliament to be expedient in the public
interest, should be added in the Union List. Opposing the suggestion, Govind
Ballabh Pant emphasized that distribution, trade and commerce were in
form and practice mostly controlled by the Provinces and that it would be
unworkable to leave all these matters to the exclusive control of the Centre.
The Premier of the Central Provinces (Ravi Shankar Shukla) also questioned
the need for the provision. Eventually, in view of the opposition it was
agreed to place the proposed entry in the Concurrent List.

Then there was an amendment, jointly sponsored by the Ministries of
Health and Home Affairs, which aimed at taking away “Public health and
sanitation” from the State List (entry 15) and placing this matter along with
“Vital statistics including registration of births and deaths” in the Concurrent
List. The proposal sparked off a heated controversy in which many Central
Ministers and Premiers of Provinces participated. Commending the
amendment, Munshi said that Central legislation on the subject of public
health and sanitation would be necessary to prevent the spread of diseases
from one Province to another and also for the purpose of setting up common
standards. Further, with the obvious object of making the change more
acceptable to the representatives of the Provinces and the Indian States,
both he and Ambedkar stressed the fact that Central legislation on a
concurrent subject would not normally — ^that is, unless Parliament expressly
reserved the administrative power to the Centre — take away from the units
the right to administer the subject. Most of the Premiers were firmly opposed
to the proposal. Pant, a zealous champion of the units, said that public
health and sanitation had always been exclusively the charge of the Provinces.
Moreover, as these subjects were dealt with mostly by local bodies, transferring
them to the Concurrent List would mean that the Provincial Governments
would be subject to the control of the Centre even in matters which were
purely of a regional nature. He complained that from the way the question
of distribution of powers was being approached, the States would have under
the Constitution less power than municipal boards. He could have no
objection to such a course being adopted, if the country as a whole was to
be treated more or less as a centrally administered area and the State
Governments were to be just agencies for administering Central laws. But
if the object was to have a federation and the concept of “provincial
autonomy” was to have any validity, the States must have exclusive control
over certain subjects and at least over such elementary matters as health

RELATIONS BETWEEN THE UNION AND THE STATES

635

and education which affected the every-day life of citizens. He warned that
including everything in the Concurrent List would not only increase occasions
for friction between the Union and the States — 'especiaUy, if, as was quite
likely in the future, the State Governments were not of the same political
complexion as the Government at the Centre — ’but would also greatly impair
the sense of responsibility of the State administrations.

These arguments failed to carry conviction with Nehru who supported the
change proposed by the Central Ministries of Home Affairs and Health. He
said that disease was not a local t hing . In fact, it was being tackled
increasingly at an international level and becoming progressively subject to
international regulations. It was Pant’s contention that each State should
be free to agree or not to agree to international regulation. Pant, still
unconvinced, replied that international regulations presented no insuperable
difficulty and could be dealt with effectively by mutual consultations between
the Central and State Governments. In any case, the little advantage that
might be gained by transferring the subject to the Concurrent List would
be far outweighed by the disadvantages he had pointed out. The Premiers
of Assam. Bombay and Bihar also opposed the amendment ; and at the
end of the discussion, only the second part of the amendment placing “Vital
statistics including registration of births and deaths” in the Concurrent List
was accepted.

Two other proposals — both sponsored by the Ministry of Agriculture — ^for
transferring “Forests” and “Fisheries” from the State List (entries 27 and 29)
to the Concurrent List met with strong opposition from the Provinces
and were dropped. The amendments provoked B. G. Kher, the Bombay
Premier, to protest against the process of taking one subject after another
from the State List into the Concurrent or Union List. At this rate, he felt,
there might well be only two lists — the Union List and the Concurrent List.

Some suggestions for altering the allocations of powers embodied in the
Seventh Schedule to the Draft Constitution, to the advantage of the Centre,
were accepted by the conference without encountering much resistance from
the Premiers. At the instance of the Ministry of Health, it was agreed to
omit entry 38 of the State List “Adulteration of foodstuffs and other goods”,
and to place it in the Concurrent List with the modification that the words
“other goods” were replaced by the word “drugs”. The suggestion of the
Ministry of Information and Broadcasting for transferring “the sanctioning
of cinematograph films for exhibition” from the Concurrent List (entry 32)
to the Union List was also readily accepted.

In the light of the decisions taken at the Premiers’ Conference, the Drafting
Committee formulated a number of amendments to the lists, which were later
moved in the Constituent Assembly.

The Constituent Assembly considered the lists between August 29 and
September 3, 1949. Meet of the entries and the amendments proposed
on behalf of the Drafting Committee— moved either by Ambedkar or by

636

FEAMING OF INDIA’S CONSTITUTION

T. T. Krishnamachari— were adopted with little or no discussion, though
occasions did arise when issue was joined on the question whether a particular
entry should be placed in one list or the other or on the larger question of
centralization versus decentralization. The Union List easily dominated
the proceedings and its consideration took nearly four of the six days
devoted to the whole schedule.

Among the important changes made in the list by the Assembly was the
removal of the differentiation between the Part I and Part III States, which
was veiy much in evidence in some of the entries as they had stood in the
Draft Constitution. In entry 4, for instance, the reference to the armed
forces of the Part III States — in effect according a separate and special
position to such forces — ^was omitted. Ambedkar explained that all that
would now be necessary would be to make temporary provision to deal
with such of the Indian States as had any forces*.

Similarly, by appropriate amendments, the Part III States were brought
within the purview of entries 53 and 67, the former dealing with the extension
of the jurisdiction of a High Court having its principal seat in any State
to any area outside that State and the latter with the extension of the powers
and jurisdiction of members of the police force of one State to another
State*.

Of the more controversial amendments vvas the one moved by Ambedkar
suggesting a redraft of entry 7. Its main object was to clarify that the
regulation of house accommodation in cantonment areas, referred to in the
entry, included control of rents*. The amendment was opposed by Mahavir
Tyagi on principle as well as on practical grounds. Rent control was purely
a State subject, he maintained, and there wa.s no justification for allowing
the Centre to encroach on a State’s authority. Moreover, much hardship
and confusion would result if rent control was governed by Central laws
in cantonment areas and by State laws in civil areas, as in most cases the
two areas were adjacent. The redraft was accepted by the Assembly after
Ambedkar had briefly explained that control of rent was merely incidental
to the power of regulation of house accommodation*.

Another amendment, moved by Ambedkar and agreed to by the Assembly,
reduced the elaborate entry 38 to a single word “Railways” and thereby
made all railways, whether “Union railways”, or “minor railways” or “other
railways” uniformly subject to legislation by Parliament. The changei,
Ambedkar was careful to point out, did not affect any rights of ownership

^C. A. Deb., Vol IX, pp. 731-2.

‘Ibid., pp. 783-4 and 817.

“The amendment was originally suggested by the Ministry of Law. It was
generally accepted by the Premiers’ Conference though some of the Premiers had
objected to it — see minutes of the meetings of the Drafting Committee with the
Premiers, July 21, 1949. Select Documents IV, 15(iii). p. 683.

*a ,4. Deb., Vol. IX, pp. 733-40.

RELATIONS BETWEEN THE UNION AND THE STATES

637

that any State, whether a Part I State or a Part III State, might have in respect
of any minor railway".

Two other amendments moved by Ambedkar which proved highly
controversial concerned the subject of education. One of these was for the
revision of entry 40 so as to bring within the Union’s purview, besides the
Banaras and Aligarh Universities, both of which were mentioned in the
original entry, the University of Delhi and also “any other institution declared
by Parliament by law to be an institution of national importance”. The
second — a slightly modified version of the amendment accepted earlier by
the Premiers’ Conference— sought to add to the Union List a new entry
57-A clothing the Centre with authority for the coordination and maintenance
of standards in institutions for higher education, scientific and technical
institutions and institutions for research.

The proposed amendment to entry 40 was strongly criticized by Naziruddin
Ahmad and H, V. Kamath as aiming at undue centralization in matters of
education which was meant to be a State subject under entry 18 of List
11. By virtue of Parliament’s power to declare any institution to be an
institution of national importance, they pointed out, the Union Government
could extend its jurisdiction to any institution from a university “down to
a small village school”. Ahmad suggested that Provinces should be allowed
to “meddle with their own affairs”, to make mistakes and learn by experience.
That was the only way democracy could grow. On the other hand, to the
iuncompromising advocate of unitary government, Brajeshwar Prasad, it
seemed to be beyond all question that so vital a subject as education could
not be left to the States which lacked both the competence and the financial
resources for the discharge of the responsibilities that went into them.
Shibban Lai Saxena also pleaded for making university education a Central
subject.

Ambedkar, in his reply, deemed it better to steer clear of controversy
by observing that the amendment was meant to enable the Centre to help
institutions which might be important from the cultural or national point of
view, but whose financial position might not be sound. This simple explanation
suflSced to invoke the supjmrt of the Assembly for the amendment’.

The new entry 57-A was also regarded by some members as another
instance of “unnecessary interference” with a State subject. V. S. Sarwatc,
who stood for full scope for variety in the domain of education and for leaving
the subject entirely to the units, deprecated any attempt to introduce
uniformity in the educational sphere, such as might be made through entry
57-A, as detrimental to the development of research and experimentation.
Similar criticism came from another member, P. S. Deshmukh. In
Ambedkar’s view, the critics were reading too much into the entiy which

"C. A. Deb., Vol. IX, pp. 757-8.

Hbid., pp. 761-8. Also see discussions on entry 18 of List II, ibid., pp. 881-7.

638

FRAMING OF INDIA’S CONSTITUTION

had the limited object of making it possible for the Centre to effect
coordination and to prevent the lowering of standards in certain important
spheres of education. The entry, he said, was absolutely essential in the
interests of the Centre as well as of the States, so that standards of higher
education could be maintained on an all-India basis. The Assembly adopted
the new entry to be added to the Union List’.

Another proposal which evoked spirited protest against the tendency to
“grab all powers for the Centre and emasculate the Provinces””, was
Ambedkar’s amendment to enlarge the scope of entry 52 — originally
restricted to the Supreme Court — ^to cover the “constitution and organization
of High Courts” and “persons entitled to practise before the High Courts”
also. The amendment was accepted after some discussion'.

With regard to entry 64 dealing with “development of industries” under
Union control, the Assembly adopted a redraft which, as explained by
Ambedkar. clarified that once the Centre assumed control over any particular
industry under a law, that industry became subject to the jurisdiction of
Parliament in all its aspects and not merely as regards development'. Other
notable changes made by the Assembly in List I were : the expansion of
entry 68 to cover elections to State Legislatures, which were earlier included
in the State List; the addition of a new entry relating to sanctioning of
cinematograph films for exhibition; revision of entry 73 to make inter-State
trade and commerce the exclusive concern of the Union ; and the deletion of
entiy 77 relating to provision for dealing with grave emergencies'.

So far as the other two lists were concerned, the Constituent Assembly’s
deliberations resulted in a considerable enlargement of the Concurrent
List either by the transfer of certain subjects from the State List or through
fresh additions. Thus, “Unemployment” was excluded from the State List
and the entire subject of employment and unemployment was placed in
the Concurrent List. Likewise, ports (excluding major ports which were
covered by List I), and charitable and religious endowments and institutions
were taken over from List II to List III'. The new entries added included
vocational and technical training for labour; social insurance and social
security; commercial and industrial monopolies, combines and trusts; custody,
management and disposal of evacuee property; and relief and rehabilitation
of displaced persons’. None of these changes, which were put forward

’C. A. Deb., Vol. IX, pp. 788-97.

‘Ibid., pp. 774-5 and 778-80 : speeches of Sardar Hukam Singh and Naziruddin
Ahmad.

Hbid: p. 782.

*Ib!d.. pp. 806-7.

‘Ibid., pp. 818-9, 821-5 and 832.

‘Ibid., pp. 911-3 and 946, 887-8 and 948-9, and 913-4.

‘Ibid., pp. 939-41 and 948-9. By another new entry, adopted on Oetober 17,
1949. “Contempt of Court” was also made a concurrent subject— C. A. Deb., Vol. X,
p. 403.

RELATIONS BETWEEN THE UNION AND THE STATES

639

on behalf of, or accepted by, the Drafting Committee and in some cases
involved substantial inroads into the legislative sphere reserved exclusively
for the States under the Draft Constitution, met with any opposition in
the Assembly.

In fact, several members, including H. V. Kamath, who had earlier pleaded
for larger powers and autonomy for the States, came forward with proposals
for transferring important State subjects like public health, education and
agriculture to the concurrent sphere. However excepting Lakshmi Kant
Maitra’s amendment, to take over the whole of the State List entry relating
to adulteration of foodstuffs and other goods to List III — this went farther
than the proposal accepted at the Premiers’ Conference — all the other
proposals were rejected by Ambedkar or Krishnamachari on behalf of the
Drafting Committee as being too drastic or unnecessary; a view which had
the support of the Assembly’. Explaining the Drafting Committee’s attitude
to these proposals and to the general problem of distribution of powers,
Krishnamachari said that the committee wanted neither to overload the
Centre, nor err on the side of the States, but to give only such powers to
the Centre as were needed to coordinate the activities of the units. He
also pointed out that apart from the Union’s general legislative powers, the
Central Government’s power to give grants for specific purposes would be
an important factor in securing inter-State coordinationl

With the adoption of the three legislative lists on September 3, 1949, the
only articles on the distribution of legislative powers remaining to be
considered were articles 224 and 225 which earlier had been held over
pending certain developments in relation to the Indian States. On October
12, 1949, Vallabhbhai Patel announced in the Assembly that the process
of integration and democratization of these States had been successfully
completed : these developments had made it possible to remove “all vestiges
of anomalies and disparities” which had found their way into the Draft
Constitution as a legacy from the past. Accordingly, he said, it had been
decided to do away with provisions like articles 224 and 225 which imposed
limitations on the Union’s legislative or executive authority in regard to the
Part III States’. The next day, Ambedkar formally proposed and the
Assembly readily agreed that the two articles be deleted*. Subsequently,
at the revision stage, the entries in the legislative lists were rearranged. The
Union List was further amplified to include contempt of the Supreme Court
and the audit and accounts of the Union and of the States, both additions
being considered consequential. Another addition, considered necessary

’C. A. Deb., Vol. IX, pp. 878-91. Maitra’s amendment met with some initial
resistance from Krishnamachari but was later accepted by Ambedkar and adopted
by the Assembly: Ibid., pp. 903-11 and 940.

^Ibid: pp. 885-6 and 890-1.

Vol. X, pp. 161-8.

*Ibid.,pp. 175-6.

640

FRAMING OF INDIA’S CONSTITUTION

for the sake of the economic unity and stability of the country, placed “price
control” in the Concurrent List. The articles of the Draft Constitution
dealing with legislative relations between the Union and the States, as
adopted by the Assembly, were, with some minor drafting changes,
renumbered as articles 245 to 255 of the Constitution'.

NOTE ON AMENDMENTS

Seventh Schedule
List I — Union List

Entry 33 : The Constitution (Seventh Amendment) Act, 1956, omitted
entry 33 regarding acquisition or requisitioning of property for the purposes
of the Union.

Entry 67 : The Constitution (Seventh Amendment) Act, 1956, substituted
the words “declared by or under law made by Parliament” for the words
“declared by Parliament by Law”.

Entry 92- A : The Constitution (Sixth Amendment) Act, 1956, inserted
the following new entry:

92-A. Taxes on the sale or purchase of goods other than newspapers,
where such sale or purchase takes place in the course of inter-State trade
or commerce.

List II — State List

Entry 12: The Constitution (Seventh Amendment) Act, 1956, substituted
the words “declared by or under law made by Parliament” for the words
“declared by Parliament”.

Entry 36: The Constitution (Seventh Amendment) Act, 1956, omitted
entry 36 regarding acquisition or requisitioning of property except for the
purposes of the Union, subject to the provisions of entry 42 of List III.

Entry 54: The Constitution (Sixth Amendment) Act, 1956, substituted
the following entry for the original entry 54:

54. Taxes on the sale or purchase of goods other than newspapers, subject
to the provisions of entry 92-A of List I.

List III — Concurrent List

Entry 33: The Constitution (Third Amendment) Act, 1954, substituted
the following entry for the original entry 33:

33. Trade and commerce in, and the production, supply and distribution of —

(a) the products of any industry where the control of such industry by
the Union is declared by Parliament by law to be expedient in the public
interest, and imported goods of the same kind as such products;

(b) foodstuffs, including edible oilseeds and oils ;

'Draft Constitution as revised by the Drafting Committee, Nov. 3, 1949, articles
245-55 and the Seventh Schedule. Select Documents IV, 18, pp. 836-9.

RELATIONS BETWEEN THE UNION AND THE STATES

(d) raw cotton, whether ginned or unginned, and cotton seed ; and

(e) raw jute.

Entry 40 : The Constitution (Seventh Amendment) Aet, 1956, substituted
the words “declared by or under law made by Parliament” for the words
“declared by Parliament”.

Entry 42 : The Constitution (Seventh Amendment) Act, 1956, substituted
the following entry for the original entry 42 ;

42. Acquisition and requisitioning of property.

ADMINISTRATIVE RELATIONS
(Articles 256-263)

The problem of defining the administrative relations between the Union
and the units received little attention in the early drafts and notes submitted
to the Union Powers and Union Constitution Committees, because of the
preoccupation of these committees with the basic features of the Constitution.
The Constitutional Adviser’s memorandum on the Union Constitution issued
on May 30, 1947, was silent on the subject and merely drew attention to the
provisions regarding administrative relations contained in Part VI (sections
122-135) of the Government of India Act, 1935. The lack of any specific
provisions in the memorandum at that stage was unavoidable as the nature
and scope of the provisions to be made had to depend on the decisions that
might be taken in regard to the distribution of legislative powers’.

In their joint memorandum submitted to the Union Constitution Committee,
Gopalaswami Ayyangar and Alladi Krishnaswami Ayyar formulated, on the
analogy of the provisions of the 1935 Act, a few broad rules to govern
the administrative relations between the proposed federation and its
constituent units. Article 1(2) of chapter VT of the memorandum provided
that, in legislating for an exclusively federal subject, the Federal Parliament
might devolve upon the Government of a unit, whether a Province, an
Indian State or any other area, or upon any officer of that Government, the
exercise on behalf of the Federal Government of any functions in relation
to that subject. The next article laid down in clause (1) that it would be
the duty of the Government of a unit so to exercise its executive power and
authority as to secure that due effect was given to federal laws applicable
in that unit. The clause also gave the Federal Government power to give
the unit Governments such directions as might be necessary for the purpose.
Clause (2) of the article further extended the authority of the Federal
Government to issue directions to unit Governments as to the manner

^Select Documents, II, 15(ii), pp. 492, 537,

642

FRAMING OF INDIA’S CONSTITUTION

in which the latter’s executive power was to be exercised in relation to
matters affecting the aidministration of federal subjects^

When the Union Constitution and Powers Committees deliberated on
administrative relations at their joint meeting on June 30, 1947, Munslii
suggested the inclusion of a provision to the effect that in the event of a
unit failing to carry out Central directions with regard to a federal subject
the President might take the necessary steps to have them carried out. The
proposal was not adopted at that stage; the committees apparently considered
the provisions on the subject recommended by Gopalaswami Ayyangar
and Alladi Krishnaswami Ayyar adequate and sufficienf. These provisions
were accordingly incorporated in the memorandum on the Union Constitution
(Part VI) annexed to the Union Constitution Committee’s report of July 4.
1947*.

With regard to Munshi’s suggestion, the committees felt that the appropriate
place for a provision on these lines would be the clause dealing with the
extent of the executive authority of the Federation (or the Union as it was
subsequently called). The clause relating to this matter, which had already
been accepted by the Union Constitution Committee, was taken at this stage.
Earlier, with regard to a suggestion made by Kailash Nath Katju for the
insertion of a provision making it obligatory on the Governor of a Province
to carry out the directions of the Centre, issued in pursuance of a Central
law, the Provincial Constitution Committee had decided that such a provision
was unnecessary in the Provincial Constitution and that its appropriate place
would be the Union Constitution. It was only at the revision stage of the
Draft Constitution, in November 1949, that the Drafting Committee brought
in a new article 365, providing the necessary sanctions bejhind the Union’s
power to give directions to a State.

The Constituent Assembly considered the provisions of Part VI on July 30,
1947. Raj Kanwar, a member from an Indian State, moved an amendment
seeking to reproduce the situation as in sub-sections (1) and (3) of section
124 of the Government of India Act of 1935. This amendment said :

The Federal Government may, with the consent of the Government of a
Province or the Ruler of a federated State, entrust either conditionally or
unconditionally to that Government or Ruler, or to their respective
officers, functions in relation to any matter to which the executive authority
of the Federation extends.

An Act of the Federal Legislature which extends to a federated State
may confer powers and impose duties upon the State or officers and
authorities thereof to be designated for the purpose by the Ruler.

This amendment was opposed by Gopalaswami Ayyangar who observed; that

^Select Documents II, 15(vi), p. 547. The provisions were respectively based on
ss. 122, 124 and 126 of the Government of India Act, 1935.

^Minutes, June 30, 1947. Select Documents II, 32, p. 762.

^Select Documents lly

RELATIONS BETWEEN THE UNION AND THE STATES

643

although in practice there was bound to be previous consultation between,
the Centre and the units whenever there was any proposal for entrustment
of functions, it had to be recognized that the functions proposed to be
devolved related to the administration of federal subjects, and the final
authority for the executive administration of federal subjects had to be the
Centre. A stipulation requiring the consent of a unit Government as a
condition precedent to such devolution would go against the root principles
of the exercise of executive authority in relation to federal subjects : but
provision for consultations could be included in the Constitution. The
amendment was withdrawn by the mover and clause (1) as proposed was
adopted.

Another amendment — also moved by a representative of an Indian State,
Raghuraj Singh— seeking to add a new clause 3, based on section 124(4)
of the Act of 1935 was non-controversial and was readily adopted by the
Assembly; this amendment provided that where by virtue of clause 1 duties
in relation to a federal subject had been imposed upon a unit, the Federation
would pay to the unit such sum as might be agreed, or in default of agreement,
as might be determined by an arbitrator appointed by the Chief Justice of
the Supreme Court, in respect of any extra costs incurred by the unit in
connection with the exercise of those duties.

Qause 2 did not evoke any discussion and was adopted with a minor
change suggested by Naziruddin Ahmad. The provisions of the clause,
Gopalaswami Ayyangar explained, were intended to prevent any clash
of authority between the Centre and the units and to secure* that
the units would so exercise their executive authority even in the sphere
reserved to them as not to come into conflict with the exercise of the
executive authority of the Federation'.

In the first Draft Constitution prepared by the Constitutional Adviser in
October 1947, the Part dealing with administrative relations. Part VH,
contained nine clauses (186 to 194). Of these, clauses 186, 187 and 190
were based on the three clauses adopted earlier by the Assembly. Thus,
repeating the substance of the two sub-clauses of clause 2 but employing the
phraseology of the Government of India Act, 1935’, clauses 186 and 190
respectively enjoined that the executive authority of the units should be
so exercised as (i) to secure respect for locally applicable federal and existing
laws; and (ii) not to impede or prejudice the exercise of the executive authority
of the Federation ; and they restated the powers of the Federal Government
to give directions to the units for these purposes. Clause 187 reproduced
clauses 1 and 3 with some changes and an important addition derived again
from the corresponding provision in the 1935 Act — section 124. In effect,
besides authorizing the Federal Parliament to confer powers and impose

‘The reference was evidently to sub-clause (2) of the clause.

’‘C. A. Deb., y 61. W, pp. 981-5.

*^cc sections 122(1) 126(1).

644

FRAMING OF INDIA’S CONSTITUTION

duties upon the units and providing for reimbursement to the units to meet
any extra costs incurred by them by reason of such devolution, clause 1 87
also empowered the President to entrust federal administrative functions to the
Government of a unit or to its officers, with the consent of that Government.

Clauses 188 and 189 were based on two clauses which the Assembly had
earlier included in the chapters on the Federal executive and the Provincial
executive'. Clause 188 provided that the Federation might by agreement
with any federated Indian State undertake any executive, legislative or
judicial functions vested in that State. It also empowered the Federation
to enter into similar agreements with Indian States which had not acceded
to the Federation ; every such agreement was to be subject to any law relating
to the exercise of foreign jurisdiction that might be in force. Under the
next clause the Provinces also could, with the previous sanction of the
President, undertake similar functions in regard to any Indian State on
matters within the provincial field®.

Clause 191 was designed to enable the Federal executive to exercise control
over the manner in which the executive authority of the units was to be
exercised during periods of emergency created by war or domestic violence.
The clause gave effect to the recommendation of the Union Powers Committee,
in its &st report, that the Constitution should have a provision on the lines
of section 126-A of the 1935 Act.

Of the remaining three provisions of the Part, clauses 192 and 193 again
owed their origin to the 1935 Act’. The former required the Federal
Government not to refuse unreasonably to entrust to the Governments of
the units such functions with respect to broadcasting as might be necessary
to enable them to construct and use their own transmitters, and to regulate
and impose fees in respect of the construction and use of transmitters and
the use of receiving apparatus in the units. Clause 193 authorized the
President to establish an inter-unit council with threefold duties, namely,
inquiring into and advising upon disputes between units : investigating and
discussing subjects of common concern and making suitable recommendation
on any such subject ; in particular, recommendations for the better
coordination of policy and action. Clause 194 dealt with the control of the
Federation over the administration of Scheduled Areas and the welfare of
Scheduled Tribes.

The Drafting Committee, when it scrutinized Part VII of the Constitutional
Adviser’s Draft Constitution between January 28 and February 6, 1948*,
adopted clauses 186 to 189 and 193 with some verbal alterations mainly due

JC. A. Deb; Vol. IV, pp. 885-6, 906-7 and 665-70.

^See also the chapter on the Indian States.

“Clauses 192 and 193 were respectively based on sections 129 and 135 of the
1935 Act

‘Drafting Committee minutes, January 28, 29, February 5 and 6, 1948. Select
Docamen/s III, 5, pp. 447, 455, 473, 480.

RELATIONS ^ BETWEEN THE UNION AND THE STATES

645'

to the use of a different terminology, such as the designation of .all the units
as '‘States’’/ of the Provinces and the federated Indian States as Part I and
Part III States, and the use of the words "Union” and "Parliament” in place
of "Federation” and "Federal Parliament”. The only significant ' change
was in clause 186 where, in defining the obligation of. the units in respect
of Central laws, the words "to secure respect for the laws” were replaced
by the more categorical , expression "to ensure compliance with the laws’l
To clause 190,, the committee added a new clause corresponding to section
126(3) of the Act of 1935 to the effect that the executive power of .the
Union would also extend to the issue of directions to the States as to the
construction and maintenance of means of commuiiicatioii' dial .might be
declared to be of national or military importance. Regarding the remaining
provisions on administrative relations formulated by the Coiistitiitional
Adviser, the committee thought ii appropriate to transfer clauses 191 and
194 to the respective Parts setting out the "emergency provisions” and the
"special provisions relating to minorities’’^ and to drop altogether the
provisions regarding broadcasting contained in clause 192. At the same
time, the committee decided to add to the chapter on administrative relations
a number of new provisions concerning interference with water supplies^
and inter-State trade and commerce. It also transferred to the chapter a
provision which was earlier included in the Part dealing with fundamental
rights and laid down that full faith and credit would be given throughout
the territory of India to public acts, records and judicial proceedings of
the Union and of every State and that the final judgments or orders delivered
or passed by civil courts in any part of the territory of India would be
capable of execution anywhere within that territory. Under a proviso these
requirements were not to apply to public acts etc. of a Part III
State, unless under the terms of any agreement entered into by such
a State with the Union, Parliament had the requisite legislative powers
according to law^

All the provisions on the subject of administrative relations, as settled by
the Crafting Committee, appeared in the I>raft Constitution of February 21.
1948, as articles 233 to 246. Briefly, article 233 stated .the obligation,; -of
every State so to exercise its executive authority as to ensure compliance
with the laws made by Parliament and any existing laws which applied
in the State. Article 234 required that the executive power of every State
should be ' so exercised as not to impe.de or prejudice, the ■ exercise of the
executive power of the Union, and empowered the Union to give such
directions to the States as might be necessary for this purpose.. The article

^See the chapters on Minorities and Emergency Provisions.

^These provisions were based on sections 130 to 134 of the 1935 Act.

*5^^ clause 2! of the Advisory Committee’s Interim Report on FundaHrental
Rights. A provision on these lines was also suggested by K, M. Munshi in the
Union 'Powers Committee— i-ee under -‘‘Legislative , .Relations”.

646

FRAMING OF INDIANS CONSTITUTION

also authorized the Union to give directions to a Stats as to the construction
and maintenance of means of communication declared to be of national
or military importance. Article 235 dealt with the power of the Union to
entrust functions to State Governments and officers. The Union Government
could with the consent of the State Government entrust Union functions to
Governments or officers of States either conditionally or unconditionally.
Parliament could by law confer functions and impose duties (or authorize
the conferring of powers or the imposition of duties) on States or officers
or authorities of the States. Article 235 also laid down that, when functions
were so conferred, either by arrangement or by legislation, extra costs of
administration would be payable to the States.

Articles 236 and 237 enabled the Union and Part I States to undertake
legislative, executive and judicial functions in Indian States, but the exercise
of such functions would be permissible only by virtue of agreements concluded
between the Union Government and the States'; and, in the case of Indian
States which were not federated States, such agreements were to be

subject to, and governed by, the law relating to the exercise of foreign
jurisdiction for the time being in force.

Article 238 provided that full faith and credit would be given throughout
the territory of India to public acts, records and judicial proceedings of the
Union and every State; and that final judgments or orders delivered or passed
by civil courts in any part of India would be capable of being executed
anywhere within Indian territory according to law.

Articles 239 to 242 contained detailed provisions for dealing with
complaints made by one unit against another arising out of interference
with water supplies. Such complaints were to be addressed to the President
who was required to refer them to specialist commissions for investigation.
After considering any report made to him by such a commission the
President was required to pass orders in accordance with such report, unless
a substantial question of law wa^ involved, in which case the President was
required to refer such question to the Supreme Court. If the opinion of
the Supreme Court differed from that expressed by the commission, the
President was required to refer the case again to the commission : and the
commission was required to modify its recommendations to such extent as
might be necessary to bring them in accord with the opinion delivered by
the Supreme Court.

Articles 243 to 245 dealt with inter-State commerce— a subject which, it
was eiventually found, did not appropriately fall within, the purview of the
chapter on administrative relations and was separated from that chapter
to be dealt with in a separate part of the Constitution^ Article 246
made provision for securing coordination between the States through the

'Articles 233-237 respectively corresponded to clauses 186, 190, 187, 188 and
189 of the Constitutional Adviser’s Draft Constitution.

^See chapter on Trade, Commerce and Intercourse within the territories of India.

Delations between the onion anB' the states ' 647

machinery of an Inter-State Council to be established by the President^
The provisions of the chapter did not attract much attention when the
Draft Constitution was circulated; for eliciting comments and suggestions.
However, in their memorandum on the Draft Constitution, which purported
to reflect the view of the princely States, V. T. Krishnamachari and others
took exception to what they called the “anti-federaF' provision in clause (2)
of article 234 authorizing the Union to^ give directions to a State as to the
construction and maintenance of means of communication of national or
military importance. They suggested also the addition of a provision to the
effect that in the exercise of its executive authority in any State, the Union
would have regard for the interests of that State; a similar provision existed
in section 122(3) of the Government of India Act, 1935". The suggestion
was initially accepted by the Drafting Committee which, accordingly, proposed
to add a new clause to article 233, but on further consideration the idea
was given up. The committee decided to have an additional clause in article
234 providing, on the lines of clause (3) of article 235, for payment of extra
costs incurred by a State in carrying out any Union directions issued under
article 234(2)'\ With this end in view an amendment to article 234 was
incorporated in the October 1948 reprint of the Draft Constitution.

The Constituent Assembly took up for consideration the non-controversial
draft articles dealing with administrative relations on June 13, 1949, and
disposed of most of them on the same day. Articles 233, 235 and 246
were adopted as proposed. In regard to article 234, am amendment for tl|e
addition of a new clause (3), as earlier settled by the Drafting Committee,
requiring the Government of India to contribute any extra costs that a
State might incur in carrying out Union directions in regard to means of
communication, was moved by Ambedkar and accepted by the Assembiyw
The only other notable amendments moved by Ambedkar on this occasion
related to article 238. One of these sought to amend clause (2) of the article
by vesting in Parliament exclusive authority (in contrast with the concurrent
Jurisdiction envisaged in the clause as it stood) to legislate with regard to
the manner in which and the conditions under which public acts, records
and judicial proceedings of the Union and of the States were to be proved
and their effect determined. The other amendment sought the deletion of
the proviso to clause (3) so that the provisions of the article might apply
equally and uniformly to all the Part III States also. This amendment had
become possible because of the progress that had been achieved in the process
of integration of the Indian States. Both the amendments were again readily
accepted by the Assembly. The somewhat elaborate provisions for the
settlement of water disputes between the States, contained in articles 239 'to

^Article 246 corresponded to clause 193 of the Constitutional Adviser’s Draft
Constitution., ' .

''^Select •DO'CumentSf: IN , !(i), pp. 215-6.

, ■'%M„,p. 266.:

648 FRAMING OF INDIA’S CONSTITUTION

242, were also adopted with some modifications. Articles 236 and 237
providing for the Union or the Part I States undertaking legislative, executive
or judicial functions in the Princely States, were held over for later
consideration.

Subsequently, on September 9, 1949, Ambedkar proposed the inclusion of
two new articles, 234-A and 242-A, in the chapter on administrative relations.
Article 234-A vested the Union with power to give directions to a State as
to the measures to be taken for the protection of the railways within the
State, subject to the contribution of the cost by the Government of India
on the same lines as in the case of directions under article 234’. Explaining
the need for the proposed provision Ambedkar said that since “Police”,
including “Railway Police”, was a State subjeef , the Centre had no
authority, either legislative or executive, in regard to the protection of
railway property which was its own property. The new article gave the
Centre the necessary power to give directions to the States to ensure protection
of railway property without disturbing the allocation of legislative powers.
Article 242-A was meant to replace articles 239 to 242, adopted by the
Assembly on June 13, and to provide for a simpler machinery' for the
settlement of water disputes. The new article empowered Parliament to
prwide, by law. for the adjudication of any dispute or complaint with respect
to the use, distribution or control of the waters of, or in, any inter-State
river or river valley and to exclude such disputes or complaints from the
jurisdiction of the Supreme Court and other courts. The Assembly adopted
both the new articles and agreed to the deletion of articles 239, 240, 241,
and 242’. Later, following the completion of the integration of the Indian
States and the decision to place them in regard to their relations with the
Union on the same footing as the Provinces, some further changes were
made in the chapter on administrative relations. By three amendments,
moved on October 13, 1949, Ambedkar proposed (i) the insertion of a new
article 235-A* allowing such of the Part III States (i.e., Princely States) as
had any armed forces immediately before the commencement of the
Constitution to continue to maintain such forces until Parliament by law
provided otherwise and subject to such orders as the President might
issue from time to time ; (ii) the substitution of draft article 236 by another
text which empowered the Government of India to undertake by agreement
with the Government of any territory “not being part of the territory of
India” executive, legislative or judicial functions vested in the Government
of such territory; and (iii) the deletion of article 237. The new article 235-A
was, as Munshi explained, designed to allow some time for the complete

'The suggestion for a provision on the lines of article 234-A emanated from the
Ministry of Railways. Select Documents IV, 17(i), pp. 739-40.

^See Draft Constitution — entry 4 of the State List. Select Documents III 6 p 666

'C. A. Dei*., Vol. IX, pp. 1185-8.

‘Article 259 of the Constitution.

RELATIONS BETWEEN THE UNION AND THE STATES

649

absorptioa of the armed forces of the Princely States in the forces of the
Union and at the same time to make it clear that control over the States’
forces vested exclusively in the Union. The replacement of the original
article 236, which provided for the Union assuming executive, legislative
and judicial functions in the Part III States, and the deletion of article 237,
which gave similar authority to the Part I States, were obviously corollaries
to the integration of the Indian States. All the three amendments were, again,
adopted by the Assembly without any notable discussionh

At the revision stage of the Draft Constitution as adopted by the Assembly,
article 233 was renumbered as article 256, the provisions of articles 234
and 234-A were combined to form article 257, and the subsequent articles
of the chapter, as adopted by the Assembly, namely, articles 235, 235-A,
236, 238, 242-A and 246, were respectively renumbered as articles 258 to
263. At this stage the Drafting Committee also included in ano-ther Part
of the Constitution a new article 365, as suggested earlier by Munshi and
Katju, which ensured that the directions given by the Union to the States
in exercise of its executive power would be duly carried out by the latter^
According to the new article, failure on the part of a State to give effect to
the directions of the Union would entitle the Union to supersede the State
Government and assume to itself the powers of the State Government^.

NOTE ON AMENDMENTS

Article 258-A : A new article 258-A was inserted by the Constitution
(Seventh Amendment) Act, 1956 :

Notwithstanding anything in this Constitution, the .Governor of a State
may, with the consent of the Government of India, entrust either
conditionally or unconditionally to that Government or to its officers
functions in relation to any matter to which the executive power of the
State extends.

Article 259 : The special provision contained in this article relating to
IhQ armed forces of Part B States was deleted by the Constitution (Seventh
Amendment) Act, 1956. , ' ’

FINANCIAL RELATIONS
(Articles 268-282 and 285-293) .

In the earlier stages of constitution-making the .finaiicial ' , relations between
tile Centre and the units had engaged ' the attention of 'two commto^

A. VoL .X,'pp. 175,.203-7.- : ;
chapter on Emergency Provisions.

650 FRAMING OF INDU*S CONSTITUTION

Union Powers Committee and the Union Constitution Committee. The former
did not apply its mind to the specific question of allocation of resources.
The three legislative lists compiled by it included taxing powers and generally
followed the legislative lists in the Government of India Act, 1935h

Thus, the Federal Legislative List gave the Centre exclusive power
with respect to duties of customs, including export duties ; duties of
excise other than on alcoholic liquors, drugs and narcotics and medicinal
and toilet preparations containing drugs, narcotics or alcohol; taxes on
non-agricultural income; taxes on the capital value of assets, exclusive of
agricultural land, and taxes on the capital of companies; succession and
estate duties in respect of property other than agricultural land ; stamp
duties in respect of bills of exchange, cheques, promissory notes, bills of
lading, letters of credit, insurance policies, terminal taxes on goods or
passengers carried by railway or air and taxes on railway fares and freights.

Under the Provincial Legislative List the exclusive taxing jurisdiction of
the Provinces extended over a number of items, including land revenue,
duties of excise on alcoholic liquors, narcotics, drugs and medicinal and toilet
preparations containing alcohol, drugs or narcotics; taxes on agricultural
income, taxes on lands and buildings; succession and estate duties in respect
of agricultural land; taxes on mineral rights; capitation taxes; taxes on
professions, trades, callings and employments; taxes on the sale of goods,
advertisements, road vehicles; taxes on the consumption or sale of
electricity, taxes on luxuries including taxes on entertainments, betting and
gambling; stamp duties in respect of documents other than those specified
in the Federal List; dues on passengers and goods carried on inland
waterways; and tolls.

One feature of the Government of India Act of 1935 was that the federal
taxes fell into four categories. In the first category were taxes and duties
which were to be levied and collected by the Centre, but the proceeds of
which were to be entirely distributed to the Provinces. Among these were
estate duty and succession duties, stamp duties and terminal taxes on goods
and passengers. Income tax was to be collected by the Federation but it
was obligatory that a prescribed percentage, deteimined by an Order in
Council, should be distributed to Provinces. In so far as salt duty and
federal excise and export duties were concerned, it was open to the Federal
Legislature to decide by law that the whole or any part of the net proceeds
of these duties should be distributed to the units. Import duties, corporation
tax and the other central taxes were to be retained in full by the Federal
Government.

The Union Powers Committee was of the opinion that residuary powers
(including by implication powers of taxation) should vest in the Centre except

'.Second Report of the Union Powers Committee, July 5, 1947. Select Documents
11, 33(i), pp. 776-85.

RELATIONS BETWEEN THE UNION ANO THE STATES 651

in ths case of the Indian States where any extension of federal jurisdiction
beyond the limited range envisaged in the Cabinet Mission’s plan would
have to be with the consent of those States. Again, considering the
dissimilarities between the Provinces and the Princely States in matters of
economic development, the committee suggested that the principle of
uniformity of taxation among the units might be kept in abeyance for a
period extending up to 15 years after the establishment of the Federation,
during which period the incidence, levy, realization and apportionment of
the federal taxes in the State units would be subject to agreements between
them and the Federal Government. Finally, recognizing that the retention
by the Federation of the proceeds of all the taxes specified in the Federal
List might be detrimental to the financial stability of the units, the committee
recommended that the Constitution should suitably provide for the assignment
or sharing of the proceeds of some of these taxes on a basis to be determined
by the Federation from time to time*.

In the Union Constitution Committee, Gopalaswami Ayyangar and Alladi
Krishnaswami Ayyar suggested specific provisions on the subject of federal
linancel These were considered by the Union Constitution Committee
and the Union Powers Committee at their joint meeting on June 30, 1947,
and, with some slight modifications, incorporated in the memorandum
appended to the Union Constitution Committee’s Report of July 4, 1947,
as clauses 1 to 5 of Part VII, entitled “Finance and Borrowing Powers”.

Clauses 1 and 2 laid down that while revenues derived from sources in
respect of which the Federal Parliament had exclusive powers to make laws
would be classified as federal revenues, provision should be made for the
levy and if necessary the distribution of certain federal taxes, namely,
customs, federal excises, export duties, death duties, taxes on income and
taxes on companies. Clause 3 empowered the Federal Government to make
subventions or grants for any purpose notwithstanding that the purpose
was not one with respect to which the Federal Parliament might make laws.
The next two clauses authorized the Federal Government to borrow for
any of the purposes of the Federation upon the security of Federal revenues
subject to such limitations and conditions as might be fixed by Federal law
and to grant a loan to, or guarantee a loan by any unit on such terms and
under such conditions as the Federal Government might prescribe*.

During the consideration of the Report of the Union Constitution

'Second Report of the Union Powers Committee, July 5, 1947. Select Documents
II, pp. 776-85.

’Memorandum on the Principles of the Union Constitution. Select Documents
II, 15(vii), pp. 547-8.

“Minutes of the joint meeting of the Union Constitution and Union Powers
Committees, June 30, 1947; and Report of the Union Constitution Committee. Select
Documents ll, 32 and 18, pp. 762, 585. The clauses corresponded to sections 136 to
140, 162 and 163(2) of the 1935 Act

652

FRAMING OF INDIA’S CONSTITUTION

Committee, the provisions of Part VII of the memorandum came up before
the Assembly on July 30, 1947. Clauses 1 and 2 were held over at the
instance of Gopalaswami Ayyangar who observed that the two clauses
raised issues of far-reaching importance; and it was, therefore, intended to
appoint an expert committee to undertake a detailed investigation into the
whole question of the distribution of revenues between the Federation and
the units and submit proposals which could be suitably embodied in the
Constitution*. Clause 3, he explained, sought to enable the Federal
Government to subsidize activities which othenvise fell within the exclusive
sphere of the units. This power was “a very necessary weapon” for the
Federal Government to possess in the interest of the development of the
country as a whole. The idea behind clause 5 was that the Federal
Government made itself responsible for the solvency of the units.

Speaking on clausj 3, B. Das urged that federal grants-in-aid or subventions
to the units should not be treated as “charity grants” of the Federal Finance
Ministers and should, therefore, be placed on a firm statutory basis. Another
member, Omeo Kumar Das, expressed the hope that the Expert Committee
would ensure a fair deal to the units. The three clauses — 3, 4 and 5 — were
adopted by the Assembly without any modification, the last two practically
without discussion".

The Draft Constitution prepared by the Constitutional Adviser in October
1947, retained the division of taxing powers as envisaged in the Federal
and Provincial Legislative Lists recommended by the Union Powers
Committee in its second report". Clauses 194-A to 210 under Part IX of
the Draft Constitution dealt with (i) the assignment, in whole or in part,
of the proceeds of certain federal taxes to the units — i.e. the Provinces and
the federated Indian States. The Chief Commissioners’ Provinces vvere
excluded for the purposes of the financial arrangements provided for in
this Part because they were the direct responsibility of the Federation*;
(ii) grants-in-aid from the Federation to the units ; and (iii)
certain other important aspects of the financial relations between
the Centre and the units, including their respective borrowing powers. The
provisions generally followed the corresponding provisions of the 1935 Act.

Thus, while all the duties or taxes included in the Federal List were to be
levied and collected by the Federation under clause 196" the net proceeds
of duties in respect of succession to property other than agricultural land,

‘Later, while replying to the general discussion on the Second Report of the
Union Powers Committee, Gopalaswami Ayyangar reiterated the intention of setting
up an expert committee to go into the question of financial distribution between the
Centre and the units. C. A. Deb., Voi. V, pp. 102-5.

AC. A. Deb., VcA. IV, pp. 987-94.

'^Select Documents III, 1, Ninth Schedule, pp. 174-82.

V/Ml p. 81, clause .

“This was, in substance, identical with section 137 of the 1935 Act

RELATIONS BETWEEN THE UNION AND THE STATES

653

estate duty in respect of property other than agricultural land, stamp duties
mentioned in the Federal List, terminal taxes on goods or passengers
carried by railway or air, and taxes on railway fares and freights, except in
so far as those proceeds represented proceeds attributable to Chief
Commissioners’ Provinces, were to be assigned to the units and distributed
among them in accordance with such principles of distribution as the Federal
Parliament might formulate by law. The Federal Parliament could at any time
increase any of these duties or taxes by a surcharge for federal purposes and
the entire proceeds of any such surcharge were to accrue to the Federation.

Clause 197^ provided for a sharing of the proceeds of federal taxes
on income other than corporation tax. A prescribed percentage of the net
proceeds of such taxes (except the amount of the taxes attributable to the
Chief Commissioners’ Provinces or of taxes payable in respect of federal
emoluments) was to be assigned to the units. The authority to prescribe
the percentage of the proceeds for allocation to the units, as w^ell as the
mode of its distribution among them, was vested in the Federal Parliament.
Flere again power was given to levy a surcharge for the exclusive use of
the Federation.

One of the first acts of the national Government was the abolition of the
salt duty : and this was incorporated in clause 198(i). Under sub-clause (2)
if an Act of the Federal Parliament so provided, the whole or any part
of the net proceeds of any of the federal duties of excise and export duties
might be allocated to the units in accordance with such principles of
distribution as might be formulated in that Act: in other words, the sharing
in this case was meant to be permissive and not obligatory. Sub-clause (3)
made an exception of the export duty on jute or jute products. It stipulated
that part of the net proceeds of any such duty in each year would have
to be assigned to the units in proportion to the respective amounts of the
jute grown therein; it was again left to the Federal Parliament to determine
what proportion of the proceeds in any year would constitute the combined
share of the units concerned".

Clause 199 dealt with general or specific federal grants to the units. The
opening part of the clause, besides empowering the Federal Parliament to
provide, by law, for the payment of grants-in-aid to such of the units as
it might determine to be in need of assistance, made it clear that in doing
so it would be competent for Parliament to prescribe different sums for
different units. This was followed by two provisos providing for specific
grants on two matters. The first proviso required the payment out of the
federal revenues of such sums to each of the Provinces as might be necessary
to enable it to meet the cost of any schemes of development, undertaken by
die Province with the approval of the Federal Government, for the welfare

^Corresponded to section 138(1) and (4) of the 1935 Act.

^Sub-clauses (2) and (3) were respectively based on sub-sections (1) and (2) of
section 1.40 of the . 1935 ...Act '

654

FRAMING OF INDIANS CONSTITUTION

of the Scheduled Tribes and for raising the level of administration of the
Scheduled Areas in the Province to the average standard of the Province.
The second proviso enjoined payments to the Province of Assam to cover
(i) the average excess of expenditure over the revenues during the three years
preceding the commencement of the Constitution in respect of the tribal
areas of the Province; and (ii) the cost of any development schemes, approved
by the Federal Government, for the purpose of raising the level of the
administration of the tribal areas to that of the rest of the Province'.

Clause 200 made it clear that no law of a unit relating to taxes on
professions, trades, callings and employments would be invalid on the ground
that it was a tax on income; but this was subject to the condition that the
total amount payable Jn respect of any one person to the unit or to any
one local authority in a unit by way of such taxes would not exceed Rs. 50
per annum. This maximum limit was intended to prevent the levy, in the
garb of a profession tax, of what might well be a parallel income tax.
Existing legislation on the subject, providing for taxes in excess of that
limit, was however allowed to continue until provision to the contrary was
made by the Federal Parliamentl

Clause 201 saved existing taxes levied by a unit or a local authority
on subjects which might have been transferred by the Constitution from the
Provincial List to the Federal List, Such taxes could continue to be levied
until provision to the contrary was made by the Federal Parliamenf .

Then came certain provisions which were, following the phraseology of
the 1935 Act, described as ‘'miscellaneous financial provisions”. Clause 203
authorized the Federation or a unit to make grants for any purpose
notwithstanding that the purpose was not one with respect to which the
Federal Parliament or the Legislature of the units, as the case might be,
could make laws. Three other clauses in this sub-chapter dealt with the
immunities of the Centre and the units as regards mutual taxation. Clause
205 laid down that the property of the Federation would, save in so far
as any federal law might otherwise provide, be exempt from all taxes
imposed by a unit or any authority within it. But this would not affect,
until the Federal Parliament legislated to the contrary, the liability
of any federal property to any such tax to which it was subject
immediately before the commencement of the Constitution. The next clause
prohibited the units from taxing electricity consumed by, or sold for
consumption by, the Federal Government, or consumed in the construction,
maintenance or operation of a federal railway, whether by the Federation
or by a railway company. The clause also said :

Any such law imposing, or authorizing the imposition of, a tax on the sale

^Clause 199, in so far as it provided for general grants, was based on section 142
of the 1935 Act.

2Tbe clause substantially reproduced section I42-A of the 1935 Act,

sBased on section 143(2) of the 1935 Act

RELATIONS BETWEEN THE UNION AND THE STATES

655

of electricity shall secure that the price of electricity sold to the Federal
' Government, for consumption by that Government, or to the Federal
Government or any such railway company as aforesaid for consumption
in the construction, maintenance or operation of a federal railway, shall
be less by the amount of the tax than the price charged to other consumers
of a substantial quantity of electricity.

The exemption could be waived by the Federal Parliament if and when
it so desired^ Clause 207 provided that the Government of a unit would
not be liable to federal taxation in respect of lands or buildings situated
within the territories of the Federation >or income accruing, arising o*r received
within such territories. This exemption, however, did not apply to (a) any
income accruing to a unit Government through trade or business and (b) the
personal property or the personal income of the Ruler of an Indian State.
Tills provision made an important departure from section 155 of the 1935
Act, according to which unit Governments were liable to federal taxation
only in respect of trade or business operations carried on by them outside
their own territories. Justifying the change and explaining why the Federation
should have the power to tax the units, but not vice versa, the Constitutional
Adviser observed that when the Federation taxed the institutions of the
units it taxed its constituents, whereas when a unit taxed the operations
of the Federal Government it acted upon institutions created not by
its own constituents but by people over whom it could claim no
controF.

Finally, there were two provisions — clauses 209 and 210 — dealing with
‘‘borrowing” and constituting a separate chapter of Part IX^ According
to clause 209, the executive authority of the Federation extended to borrowing
upon the security of the revenues of the Federation within such limits as
might from time to time be fixed by an Act of the Federal Parliament, and
to the giving of guarantees within limits, also to be fixed by Parliament.
Clause 210(1) conferred a similar power on the Provinces subject to certain
limitations specified in sub-clause (3) of the clause. Sub-clausqi (2) authorizeid
the Federal Government to make loans to, or give guarantees in respect of
loans raised by, a Province or a Princely State, while sub-clause (3) laid
down that so long as such a loan or any part thereof remained outstanding,
no fresh loan could be raised by a Province without the consent of the
Federal Government.

On October 2, 1947, an Expert Committee on Financial Provisions was

Clauses 203, 205 and 206 were, in substance, identical respectively with sections
150(2), 154 and 154-A of the 1935 Act.

Tn support of his coiitention that unit Governments should be liable to federal
taxation in respect of their trading operations B. N. Ran cited two U. S. Supreme
Court decisions : McCulloch v. Maryland (1819) and South Carolina v. United
States (1905), B. N. Rau’s notes on clauses. Select Documents III, l(ii), pp. 204-5.
^Based respectively on sections 162 and 163 of the 1935 Act,

656

FEAMING OF INDIANS CONSTITUTION

appointed by the President of the Assemblyh The committee consisted of
N. , R.' Sarkar, a former member, of the Viceroy’s Executive Council, and
V. S. Sundaram and M. V. Rangachari, two senior officers of the Indian
Audit and Accounts Service. This committee was required to examine
the existing provisions relating to finance and borrowing powers in the
Government of India Act, 1935 and their working during the preceding ten
years^ and to make recommendations as to the provisions on the subject
to be embodied in the new Constitution. The committee received a number
of memoranda from the various Provincial Governments setting out their
claims for larger resources and also a memorandum from the Ministry of
Finance representing the point of view of the Central Government. It had
also occasion to consider the provisions formulated by the Constitutional
Adviser in Part IX of his Draft Constitution.

In general, the Provinces expressed their dissatisfaction with the financial
arrangements prescribed under the 1935 Act and were against their
continuance under the new Constitution. They stressed that, inasmuch as
all the nation-building departments fell within their sphere, and the sources
of revenue allotted to them under the Act were in.sufficient and inelastic,
provincial finances needed to be augmented by (i) provincializing some of
the existing Central taxes, (ii) giving the Provinces a larger share in the
shared items of Central revenue, and (iii) inclusion of more Central items
of revenue in the divisible pool.

In matters of detail, the suggestions made by the various Provinces varied
considerably. Thus, as regards the assignment of the proceeds of income-tax
to the Provinces, the Governments of the United Provinces and Orissa were
satisfied with the existing allocation of 50 per cent, of the net proceeds, while
Madras wanted 50 per cent, to be the minimum. West Bengal wanted the
provincial share to be raised to 60 per cent, and Bombay, Assam and the
Central Provinces sought to justify as much as 75 per cent. On the question
of apportionment of the proceeds among the Provinces themselves, the
Provincial Governments differed widely in their views, each suggesting tlie
adoption of a particular basis which suited it best. Bombay and West
Bengal supported the basis of residence, the United Provinces that of
population, and Bihar a combined basis of population and origin of income.
Assam and Orissa, both of which claimed with a good deal of justification
to be poorer than the rest and strongly pleaded for special treatment in
the new scheme of financial relations, wanted weightage for backwardness.
East Punjab, while suggesting no particular basis, wanted its deficit of thirty
million rupees to be met by an increase in its share of the proceeds, .of.
income-tax.

Madras, Bombay, the' Central Provinces and the United Provinces also

^Select Documents III, 4, p. 259.

mid., Ill, 4(iii)„pp. 260-3,

RELATIONS : BETWEEN,.. THE UNION AND ^ THE STATES

657

urged that corporation tax, which accrued ' wholly to the Centre under : the'
1935 Act, should be pooled with income-tax, and shared with the Provinces,
and that , all excise duties should be provincialized. Madras^ Bombay ' and
Orissa also desired the addition of export duties to the divisible pool, while
the United Provinces expressed itself in favour of entirely provincializing the
item. West Bengal demanded that 75 per cent, of' the export duties on jute
or jute products should accrue to the Provinces growing or manufacturiEg
jute: namely. West Bengal, Bihar, Assam and Orissa. Assa.m pleaded that
at least 75 per cent, of the excises collected on wasting assets, e,g, petroleum,
should go to the producing unit. It also wanted a similar share of the export
duty on its tea. ■

The provincial memoranda also set out the claims and views of the
respective Provinces in regard to Central grants. The United Provinces
wanted for itself a minimum Central allocation of sixty or seventy millions
per annum, to begin with. The Central Provinces suggested that a system
of Central grants should be devised after taking into consideration all relevant
factors, such as the natural resources of each Province, its stage of industrial
development and its taxable capacity ; while West Bengal laid emphasis on
the institution of a Finance Commission on the lines of the Commonwealth
Grants Commission in Australia. Bihar pleaded that Provinces with a
comparatively lower per capita revenue and expenditure should be given
greater assistance than those which were better off. Assam reiterated its
claim for special treatment as a frontier as well as a backward Province and
saw in these points an obvious case for an upward revision of the subventions
granted to itself as well as to Orissa',

The Ministry of Finance memorandum pointed out that the second world
war had placed a staggering burden on the resources of the Centre. As a
result, in spite of the fullest exploitation of its taxation resources, the Centre
had to face very substantial deficits in eight of the ten years (1937-47) during
which the financial scheme of the 1935 Act was in operation. On the other
hand, all the Provinces except Assam and Bengal had done well during this
period and built up substantial reserves. As for the future, the Ministiy
stressed that owing largely to the uncertainties created by the partition of
the country, it was not possible to make any forecast of the financial
requirements of the Centre. However, on the available indications and oh
the then existing basis of taxation it was not likely that in the immediate
future the Centre would have large surpluses for release to the Provinces.
A considerable increase in defence expenditure over^ the pre-war years,
subsidies on imported foodgrains. relief and rehabilitation of the displaced
persons uprooted by partition and new responsibilities in the field of
external affairs would all place heavy demands on the central exchequer,

Memoranda submitted by the Provincial Governments to the Expert Committee
o.n, Financial' Provisions "(Not published);

658

FRAMING, OF INDIA’S CONSTITUTION

wMle there no scope for increasing central revenues^

, ,On an assessment of the relative needs of the Centre and of the Provinces,
the: Expert; Comxnittee came to the conclusion that a substantial transfer
of ..revenues from the Centre to the Provinces seemed inevitable. While
the needs of the Provinces were almost unlimited, particularly in relation
to welfare and development work, which had been entirely suspended during
the war, their revenues were likely to go down much below the peak levels
achieved during war-time. Moreover. Provincial Governments had to share
the provincial sources with local bodies and would also have to abandon an
important source of revenue — liquor excises^ — on account of the policy of
prohibition adopted By the Indian National Congress. Even though the
Centre would undoubtedly have to bear heavy expenditure in the initial
stages because of certain temporary problems, such as food shortage and
the refugee problem, its financial position was regarded as essentially sound
and, in normal conditions, its expenditure should be comparatively stable
and capable of releasing sizable sums every yearl
As to the precise methods to be adopted for strengthening provincial
finances, the committee appeared to be guided by two basic considerations,
namely, (1) that there should not be too violent a departure from the status
quo in respect of the distribution of resources, and (2) the necessity of placing
at the disposal of Provincial Governments adequate resources of their own,
so that they did not have to depend on ‘'the variable munificence or affluence”
of the Centre.

The Provinces must, therefore, have as many independent sources of
revenue as possible. On the other hand, it is not practicable to augment
their revenues to any considerable extent by adding more subjects to the
Provincial Legislative List, without simultaneously upsetting the equilibrium
of the Centre. We cannot, therefore, avoid divided heads; and what we
have to aim at is to have only a few divided heads, well balanced and
high yielding, and to arrange that the shares of the Centre and the
Provinces in these heads are adjusted automaticaliy without friction or
mutual interference®.

V Given these premises, the committee . did not recommend' any important
alterations in the legislative lists as framed by the Union Powers Committee;
it • suggested' that in ' view of the far-reaching effects of stock exchange
transactions there should be a new addition to the Federal List : “Stock
exchanges, and futures markets . and taxes other than stam.p di'iti,es on
transactions in ^hem^”

Memorandum submitted ' by , the Ministry . of Finance to the Expert, Gom.mittee
on Financial Provisions (Not published).

: .^.^Report of the Expert Committee on the Financial Provisions of the. Union
Constitution, ni, 4(iii), pp. 266-7.

para 28.
para 30.

RELATIONS BETWEEN THE UNION AND THE^ STATES 659

■ . The ccfmmittee recommended that of the taxes msntioried. in the Federal
List, the Centre should retain the entire net proceeds of taxes on the capital
of companies, and taxes, on railway fares and freights. Export duties, the
committee believed, were capable of very limited application, had to be
levied with great caution, and were unsuitable for sharing with the Provinces.
To compensate the jute-growing Provinces, which were getting a share in
the export duty on jute under the 1935 Act, the committee recommended
the payment of certain fixed sums to each of those Provinces every year,
for a period of ten years or until the export duties on jute or jute products
were abolished, whichever might be earlier.

In regard to the divisible central taxes, the committee suggested that the
Provinces should get not less than 60 per cent, of the net proceeds of all
income-tax except what would be attributable to the Chief Commissioners’
Provinces and taxes on federal emoluments ; also that the net proceeds of
corporation tax should be included in the divisible pool. The formula
suggested for distributing the provincial share among the Provinces was:
20 per cent, on the basis of population and 35 per cent, on the basis of
collection, 5 per cent, being utilized as a balancing factor in order to mitigate
any hardship that might arise in the case of any Province as a result of the
application of the other two criteria. Fifty per cent, of the net proceeds of
the excise duty on tobacco was to be assigned to the Provinces and distributed
among them on the basis of estimated consumption. This was the utmost
the committee could suggest to meet the almost unanimous demand of the
Provincial Governments for a share under excises. Explaining its aversion
to giving the units a share in too many central excises, the committee
observed in paragraph 40 :

If it was possible to have excises on commodities not subject to customs
duties (whether revenue or protective) or not competing or capable of
competing with, or of substitution for, commodities subject to customs
duties, e.g. on rice or wheat or millets or on jute and jute goods consumed
in India, we see no reason why such excises or a share thereof should
not be allotted to the units, apart from, the general political objection to
the division of heads v/z. the divorce of benefit from responsibility. But such
excises are not likely to be levied. Again it is obvious that excise duties
on commodities subject to a protective tariff or even a high revenue
tariff could not be conveniently shared. In the circumstances the utmost
that we can suggest by way of assistance in this respect to the Provincial
Governments is to hand over to them a share of the important central
excises on a commodity not receiving tariff protection viz, tobacco.
Incidentally, the effective administration of this excise requires the active
cooperation of Provincia! Governments, which would be better
forthcoming if they had a share in the tax. We are averse to giving the
units a share In too many central excises : for, such an arrangement
would not only magnify the political objection of benefit without

660 FKAMING OF 0^

responsibility but lead to administrative inconvenience, since the rates could
not be altered except by the consent of all the beneficiaries.

In regard to federal stamp duties and terminal taxes on goods or passengers
carried by railway or air, the committee favoured the continuance of the
st0m quo, i.e. 'f/h.ilQ the duties or taxes would be levied by the Centre, the
proceeds would accrue wholly to the Provinces. However, in the case of
estate and succession duties the committee recommended a departure from
the existing arrangement, under which the entire net proceeds went to the
Provinces, so as to benefit the Centre. It suggested that the Centre could
retain a maximum of 40 per cent, of the net proceeds of such duties'.

On the subject of central grants-in-aid and subventions, the committee
generally agreed with the provisions of clauses 199 and 203 of the
Constitutional Adviser’s Draft Constitution. It did not think that the
Australian system could be adopted under Indian conditions of using federal
grants as an instrument for bringing up the backward units to average
standards, both in effort (severity of taxation) and in performance (standards
of services). The hope was expressed that the Centre, in distributing specific
purpose grants, would keep in view the varying circumstances of the different
Provinces. The committee also felt that Assam and Orissa would require
fixed subventions on scales higher than those they were getting, while East
Punjab, and perhaps West Bengal too, might need some special assistance
for some time.

The net effect of the various recommendations of the committee was that,
on the then existing basis of revenue, the Centre would have to transfer
to the Provinces a sum of the order of three hundred million rupees
annually^

The recommendations of the committee were intended to furnish the initial
basis of apportionment among Provinces and were not meant to be a long-
term solution. The committee considered it necessary to have a periodical
review of the whole position by an impartial expert body and, for this
purpose, recommended the setting up of a Finance Commission to be entrusted
with three main functions : namely, (i) allocation between the Provinces of
the shares of centrally administered taxes assigned to them ; (ii) considering
applications for grants-in-aid for Provinces and reporting thereon; and (iii)
considering and reporting on other matters referred to it by the President.
The basis of the allocation of revenues between the Provinces was to be
reviewed by the Commission every five years, or. in special circumstances,
earlier.

The Constitutional Adviser’s recommendation in clause 207 of his Draft
that trading operations of the units, as also of local bodies, whether carried
on within or without their jurisdiction, should be liable to central taxation,

'Report of the Expert Committee, paras 34 to 44 and 50 to 58.

. ‘f bid., paras 45 to 48- A and 59.

RELATIONS BETWEEN THE UNION AND^ THE STATES 661

liad the committee’s approval ; but it suggested that quasi-trading operations
incidental to the normal functions of Government, such for example as the
sale of timber by the Forest Department or of jail pro.ducts by the Jails
Department, should be exempt fro-m such taxation. Regarding clause 210
of the I>raft, dealing with the borrowing powers of the Provinces, the
committee assumed that the provision would be applicable not only to the
Provinces but also to the Indian States. The observation was added that
it might perhaps be necessary to clarify that a unit Government could not
go in for a foreign loan without first obtaining the consent of the Federal
Government’.

As regards the position of the Indian States in the new financial system,
the committee expressed its complete agreement with the Union Powers
Committee’s plea that for a period of about 15 years the levy, realization
and apportionment of central taxes in those units might be regulated by
agreements between them and the Central Government. It urged that in the
interim period the States should gradually develop all taxes in the Provincial
Legislative List so that they might correspondingly give up reliance on taxes
in the Federal List'-.

The committee also recognized the necessity for incorporating in the
Constitution a special provision authorizing the President to suspend or vary
the financial provisions relating to the distribution of revenues etc. in times
of emergency’.

Finally, the committee formulated appropriate amendments to the relevant
provisions of the Constitutional Adviser’s Draft Constitution, embodying
the recommendations made in its report* which was sent to the Secretary
of the Constituent Assembly on December 5, 1947, for submission to the
President of the Assembly.

The Expert Committee’s view that the Centre should, and could well afford
to, transfer substantial revenues to the Provinces met with strong criticism
from K. M. Munshi, a member of the Drafting Committee. Maintaining that
central resources were very limited in relation to its expenditure, he urged
that while each Province had its own requirements for reconstruction and
development schemes, it had to be remembered that the functions of the
Centre were vital to the survival of the nation and its needs were in
consequence paramount. In any case, in the next five years, the Centre
could not, in view of its own heavy financial responsibilities, assume any
further financial commitment towards the Provinces. Munshi also questioned
the manner of allocating moneys to the Provinces suggested by the committee.
He thought that it had erred in laying too much emphasis on sharing of the
proceeds of Central taxes and in allowing a minor role to the device of

^Report of the Expert Committee, paras 64 to 71, 73, 74, 81 and 82.
paras 83-99.

^IMd, para 75.

‘fhid.. Appendix VI.

66 !^

Maying op indues coNsfiTuTiOK

grants-in-aid which had been assuming, in many federations, major significance
as the means of inter-governmental fiscal coordination. He suggested that
the Australian system of grants might be adopted in India with suitable
modifications, on the ground that, properly allocated and judiciously
controlled, the grant-in-aid was an appropriate means of introducing a
sorely needed element of financial flexibility into an otherwise rigid
constitutional framework and an elfective instrument for bridging the gap
between the fiscal and administrative capacities of the units.

The Drafting Committee took up towards the close of January 1948
the formulation of financial provisions for inclusion in the Constitution. It
had before it two alternative sets of proposals recommended respectively
by the Constitutional Adviser and by the Expert Committee. On the crucial
question of the distribution of revenues, or more precisely, the allocation
of a share of the proceeds of central taxes to the units, the committee
plainly recorded its inability to accept the recommendations of the Expert
Committee. It thought that, in view of the unstable conditions prevailing
at the time, it would be best to retain, for at least five years, the stafus
quo which had been largely left undisturbed in the Constitutional Adviser’s
Draft. While proceeding generally on the basis of the provisions of Part
IX of the Constitutional Adviser’s Draft in other respects also, the committee
introduced certain modifications some of which were based on the
suggestions of the Expert Committee.

For instance, the recommendation of the Expert Committee regarding
the setting up of a Finance Commission to undertake a periodical review of
the distribution of revenues was accepted in substance though not in all
the details. An interesting proposal approved by the Drafting Committee
at one of its meetings, but given up on reconsideration, required, in effect,
that the proceeds of any taxes levied by the Centre in exercise of its residuary
powers would have to be shared between the Union and the units. In regard
to the legislative lists, the committee accepted the Expert Committee’s
suggestion for the addition of a new entry in the Union List dealing with
stock exchanges and futures market. Further, it modified the entry relating
to Central excise duties so as to bring within its purview medicinal and
toilet preparations containing alcohol and narcotic drugs*.

All the provisions regarding distribution of revenues, immunities of the
Union and the units in the matter of mutual taxation, borrowing powers etc.,
as settled by the Drafting Committee, appeared later as articles 247 to 269
in Part X of the Draft Constitution of February 21, 1948. As in the
Constitutional Adviser’s Draft, the proposed financial arrangements were
restricted in application to the erstwhile Governors’ Provinces and the
Princely States respectively, redesignated as Part I and Part III States; the

“Drafting Committee minutes, January 29-30 and February 3-6 and 1!, 194S, and
Report of the Drafting Committee, dated February 21, 1948, para IS, Select
Documents III, 5 and 6, pp. 455, 459, 465, 470, 473, 480, 498.

RELATIONS BETWEEN THE UNION AND THE STATES

Chief Commissioners’ Provinces (Part II States) continued to be treated
in financial, as in other matters, as the direct responsibility of the Central
Government.

Articles 249 and 250 listed the taxes and duties proceeds of which were
to be wholly assigned to the States. There was however some difference
between the two provisions. The duties specified in the former article— Union
stamp duties and Union duties of excise on medicinal and toilet preparations—
were to be levied by the Government of India but collected and the
proceeds retained by the States within which the duties were leviable. In
the case of the taxes and duties specified in the latter article — estate and
succession duties on property other than agricultural land, terminal taxes
on goods and passengers carried by rail or air, and taxes on railway fares
and freights— the collection also was to be done by the Union Government
but the distribution of the proceeds among the States was to be governed
by principles formulated by Union legislation. Article 251 provided for the
sharing of the proceeds of Union taxes on income, other than corporation
tax. between the Union and the States. The provision was similar to clause
197 of the Constitutional Adviser’s Draft, except that the percentage of
the proceeds to be assigned to the States, the manner of distribution among
the States inter se, and the time from which such distribution would
commence, were to be prescribed by the President and not Parliament.
The President was also to take into consideration the recommendations
of the Finance Commission after such a commission was constituted. Article
252 authorized Parliament to levy, for the purpo'ses of and exclusive
utilization by the Union, surcharges in respect of any of the taxes or duties
mentioned in articles 250 and 251.

Article 253(1) prohibited the Union from levying duties on salt. Some
of the members of the Drafting Committee were inclined to make a practical
approach to the question of the salt duty; and they were of the' opinion
that there should be no constitutional prohibition regarding the duty on
salt and that its levy should be left to the discretion of Parliament. Alladi
Krishnaswami Ayyar favoured a constitutional ban on salt duty. Clause (2)
of the article was a provision on the lines of section 198(2) of the
Constitutional Adviser’s Draft enabling Parliament by law to assign to the
States the proceeds of central excise duties other than duties on medicinal
and toilet goods containing alcohol, narcotics and drugs (which were to be
collected and retained by the States). The Drafting Committee agreed with
the recommendations of the Expert Committee on the financial provisions
that duties of customs, including export duties, should be retained by the
Federation, as also taxes on the capital value of assets, taxes on the capital
of companies, and taxes on railway rates and freights.

Article 254 reproduced with some modifications the provisions contained

^Select Documents III, 6, pp. 611-20.

664 FRAMING OB INDIA’S CONSTITUTION

in clause 198(3) of the Constitutional Adviser’s Draft regarding the assignment
of a part of the export duty on jute or jute products to the producing States.
The proviso to the article sought to continue the existing arrangements in
this respect till the requisite legislation was enacted by Parliament.

Articles 255 and 257, dealing respectively with Union grants to the States
and savings in respect of existing State or local taxes, duties etc., were
substantially the same as the corresponding provisions formulated by the
Constitutional Adviser, while article 256 reproduced clause 200, with the
modification that the maximum limit of State or local taxes in respect of
professions, trades, callings and employments was raised to Rs. 250 f«r
annum. The change was based on the recommendation of the Expert
Committee’.

Article 258 contained a partial acceptance of the recommendations of the
Union Powers Committee, which had also found support from the Expert
Committee, for allowing a measure of flexibility in the new financial
arrangements in regard to the Indian States. Tlie article laid down tliat
irrespective of the foregoing provisions relating to the distribution of
revenues, the Union might enter into an agreement with any of the Part III
States for the levy and collection of any Union tax or duty and the distribution
of its proceeds. Any such agreement could continue in force for a maximum
period of ten years from the commencement of the Constitution ; but after
the first five years it would be open to the President to terminate or modify
any such agreement if on the basis of the report of the Finance Commission
he thought it necessary to do so.

Article 260 provided for the setting up of a Finance Commission by the
President at the expiration of five years from the commencement of the
Constitution and thereafter at the expiration of every fifth year or at such other
time as the President might consider necessary. The Commission was to consist
of a chairman and four other members, and the qualifications and manner of
selection of the members were to be determined by Parliament by law. The
Commission was to make recommendations to the President as to (a) the
distribution between the Union and the States of the proceeds of the
divisible taxes and the allocation between the States of the respective shares
of such proceeds; (b) the principles governing grants-in-aid to the States out
of the revenues of India; (c) the continuance or modification of the terms
of any agreement entered into by the Union with any Part III State on
matters referred to in article 258; and (d) any other matters referred to
the Commission by the President in the interest of sound finance. The next
article required that the President should cause every recommendation of
the Finance Commission, together with an explanatory memorandum as to
the action taken thereon, to be laid before Parliament.

Of the “Miscellaneous Financial Provisions”, article 262, defining the

^Sdect Documents III, 4(iii), para 30, p, 269.

RELATIONS BETWEEN THE UNION AND THE STATES 665

powers of the Union and the States to make grants for any public purpose,
and articles 264 and 265, providing respectively for exemption of Union
property from State taxation and a similar immunity in respect of electricity
consumed by the Union, were, except for some verbal changes, reproduced
from the corresponding provisions of the Constitutio.nal Adviser’s Draft ;
and so were the borrowing provisions — articles 268 and 269. As regards
the exemption of State Governments from Union taxation, article 266 made a
departure from clause 207 of the Constitutional Adviser’s Draft by
introducing an explanation to the effect that trade or business operations
incidental to the ordinary functions of the Government of a State would
not be liable to Union taxation. This explanation was based on the
recommendations of the Expert Committee'.

The scheme of financial relations between the Union and the States,
contemplated in the Draft Constitution, attracted a number of comments
and suggestions when the Draft was circulated for eliciting opinion. V. T.
Krishnamachari and some others, who represented the point of view of the
Indian States, emphatically pointed out that article 258, which authorized
the Union to conclude agreements with the Part III States with regard to
the levy, collection and distribution of taxes and duties, was not in
consonance with the recommendations made by the Union Powers Committee.
They saw no reason why the maximum period for the currency of such
agreements should be reduced from fifteen years as recommended by the
committee to ten years. It was considered extremely unfair that the proviso
to the article should authorize one of the parties — the Union President— to
modify or terminate an agreement without the concurrence of the other
party — the Ruler of the concerned Indian State. They, therefore, urged t’ne
modification of the article so as to incorporate in toto the recommendations
of the Union Powers Committee. Other suggestions made by them were ;

(1) amendment of article 266 so as to exempt from Union taxation public
undertakings of any constituent unit, and also income arising or accruing
from trade or business carried on by a unit within its own territory : and

(2) non-application of entry 91 of the Union List, vesting residuary powers
of legislation and taxation in Parliament, to the Part 111 States^

Members of the Assembly sent a number of amendments to the provisions
of Part X. Most of these sought to give effect to one or the other of the
various proposals in regard to the distribution of revenues which had been
canvassed earlier in the various memoranda submitted by the Provincial
Governments. K. Santhanam. Ananthasayanam Ayyangar and Mrs. Durgabai
suggested modifications in articles 251 and 253 so as to provide that (a)
not less than fifty per cent, of the proceeds of income-tax would be distributed
among the States; (b) the proceeds of corporation tax would also be shared

Docamente III, 4(iii), para 74(c), p. 280.

=/Wd., IV, l(i), pp. 220-1.

666

FRAMING OF INDIANS CONSTITUTION

between the Union and the States in the same manner and on the same
basis as other taxes on income; and (c) the entire proceeds of Union duties
of excise would go to the States. Somewhat similar changes were proposed
by Ramalingam Chettiar and the Madras Finance Minister, B. Gopala
Reddi, who suggested in addition, through an amendment to article 266, that
State Governments should be exempt from Union taxation in respect of
trade or business carried on within the territory of India. Gopinath Bardoloi,
the Premier of Assam, wanted articles 253 and 254 to be so amended as
to require the assignment to the producing States of a minimum of seventy-
five per cent of the excise duty on petroleum and kerosene, a similar portion
of the export duty on tea, and a minimum of 62.5 per cent of the export
duty on jute and jute products'. Lastly, there were a few amendments
suggested by the Drafting Committee. One of these sought to bring export
duties within the purview of article 253 so that, if Parliament so provided,
the proceeds of those duties also might be shared with the States. The
amendment, it was explained, was meant to rectify an omission, since the
article was intended to follow the existing provision contained in section
140(1) of the 1935 Act. Another amendment, which sought the replacement
of the words “ten years” in article 258 by the words “fifteen years”, was
evidently meant to meet to some extent the objections raised by V. T.
Krishnamachari and others. By yet another amendment the committee
suggested revision of clause (1) of article 260 so as to enable the President to
constitute a Finance Commission as soon as practicable but not later than
the expiration of five years from the commencement of the Constitution".
The committee agreed further to a suggestion made in the meantime by the
Special Committee that the provisions recommended by the Expert
Committee should be shown as alternatives in the Draft Constitution.
Accordingly, these alternative provisions, as well as the amendments
formulated by the Drafting Committee, were appropriately indicated in the
October 1948 reprint of the Draft Constitution*.

Then there were certain suggestions from some Central Ministries,
Provincial Assemblies and others. The Ministry of Industry and Supply
suggested that the item “taxes on the sale, turnover or purchase of goods”
should be transferred to the Union List and included in clause (1) of article
250 among those taxes which were to be levied by the Union, but the
proceeds of which were to be made over to the States; the object of this
amendment was to bring about uniformity in regard to the levy and collection
of sales tax without depriving the States of the revenue accruing from it.
The Ministry was also doubtful of the propriety of the provision in article
254 for assigning a portion of the export duty on jute and jule products to
the States in which jute was grown: by the same token, other States might

^Select Documents IV, I(i), pp. 269-73.

%‘d., pp. 276, 278.

nbid., pp. 279-82.

RELATIONS BETWEEN THE UNION AND THE STATES 667

claim a share in the export duty on manganese ore or cotton cloth'. The
Ministry of Works, Mines and Power proposed amendraents to entries ,58
and 60 of the States. List — dealing respectively with taxes on the sale, turnover
or purchase of goods and taxes on advertisements; and taxes, on hhe
consumption or sale of electricity — with the object of -enabling Parliament
tO' prevent taxation by the States on multi-purpose river valley or electrical
development projects sponsored by the Central Governments

The West Bengal Legislative Assembly'' and two members of the Madras
Legislative Assembly expressed themselves in favour of embodying in the
Constitution the recommendations of the Expert Committee with regard
to the distribution of revenues. In the Bihar Legislature there was a strong
feeling that the proceeds of income-tax should be allocated among the
various States on the basis of the place where the income was in fact earned
and not where the tax was collected. By way of illustration it was pointed
out that the tax proceeds from industries which were actually located in
Bihar should be assigned to that State, although the taxes might be levied
on the head offices of those industries, which were mostly located in Calcutta
or Bombay.

The West Bengal Municipal Association" wanted to omit clause (2) of
article 256, fixing a limit of Rs. 250 per annum as the maximum amount
payable in respect of any one person to a State or a local authority by
way of taxes on professions, trades, callings and employment. Further, it
suggested a revision of article 264 to the effect that the property of the
Union would, unless Parliament legislated to the contrary, be as much
liable to all taxes imposed by any local authority within a State as any
property of an individual. The Government of Bombay too favoured that
local bodies should be in a position to levy taxes on Central Government
properties to the same extent as on the properties belonging to the State
Governments,

Dealing with the various amendments and suggestions, B. N. Rau observed
that most of the amendments proposed by the members of the Assembly
involved questions of policy and it was for the Assembly to take decisions.
This was true also of the suggestion of the Ministry of Industry and Supply
for bringing taxes on the sale, turnover or purchase of goods within the
scope of article 250; the acceptance of the suggestion practically meant the
transfer of entry 58 of the State List to the Union List. With regard , to
the mod ificat ions in entries 58 and 60 of the State List, suggested by the
Ministry: of Works, Mines and Power, B. N. Rau expressed the - view that , if
power was to be .reserved to. Parliament to impose any limitations on the
exercise' of the power to levy the taxes; referred to .in the relevant entries

'/^Seieci 'Doeuments W, l(i), pp. 269, 273.

%/U, pp. 321-2, .

^Ibid., pp. 277-8.

pp. 275, 283.

668

FRAMING OF INDIANS CONSTITUTION

by the State Legislatures, it would be necessary to insert provisions in the
main body of the Constitution on the lines of articles 256 and 265. . He
was opposed in principle to the suggestion of giving State Legislatures ■ an
unlimited power to impose taxes in respect of professions, trades, callings
and employments, as well as to the demand for withdrawing the immunity
of Union properties from State or local taxation. The acceptance of the
former course, he said, would amount to authorizing the States to levy taxes
on income in the same way as such taxes were levied by the Central
Government. Thus, there would be the anomaly of two different authorities
levying the same tax. As regards the latter, he thought that it was hardly
possible to treat the properties of the Union on a par with those of a State
in regard to the levy of taxes on such properties by a State, or any authority
within a State'.

Early in November 1948, when the Assembly discussed Ambedkar''s motion
introducing the Draft Constitution, the financial scheme again evoked
considerable controversy and criticism. Prominent among the critics at this
stage was T. T. Krishnamachari who expressed the view that, instead
of rectifying the defects of the financial distribution under the 1935 Act
by augmenting the revenues of the units and devising a more rational and
equitable system of taxation, the Draft Constitution had chosen to continue
the status quo. He also expressed his keen disappointment with the limited
role that article 260 assigned to the Finance Commission. He felt that in
view of the fact that adequate time had not been devoted to a consideration
of the financial implications of the Constitution, the Finance Commissions
to be appointed in the future should be empowered to go into the entire
financial structure of the country and recommend changes even in regard
to the heads of taxation enumerated in the Legislative Lists. Further, the
recommendations of these commissions should be made binding on the
Government of India and the State Governments. B. Das from Orissa pressed
for a reallocation of finances to endow the States with sufficient resources
for implementing the ideals of social and economic justice enshrined in the
preamble to the Constitution, while K. Hanumanthaiya (of Mysore) wanted
the Part III States to be allowed to retain all the taxing heads assigned to
the Centre, except income-tax, since those States had been enjoying in the
matter of taxation much more latitude than the Provinces. Another member,
J. M. Nichols-Roy, commented that in the matter of finance the Draft
Constitution did not give a fair deal to the Provinces, particularly the poorer
ones. He maintained that Assam had to face recurring deficits because the
revenues from two of its important products— tea and petroleum— were taken
av/ay by the Centre and hoped that the Assembly would not allow this
injustice to be perpetuated^

^Select Documents lY , l(i), pp. 269, 321-2.

H:. a. Deb., Vol VII, pp, 232-3, 239-40, 328, 339-40.

669

RELATIONS BETWEEN., THE- UNION AND THE STATES

"'■Intervening in the debate, Alladi Krishnaswami Ayyar justified the financial
arrangements embodied in the Draft Constitution by pointing out that there
was in several federations a distinct tendency for the central government
to act as the main taxing agency, though, of course, adequate provision
was made for the units sharing in the proceeds and also obtaining subsidies
from the centre. The system obviously had its advantages- as the multiplica-
tion of taxing agencies caused much inconvenience to the citizens'.

In July 1949, the draft financial provisions were discussed at length at
the Premiers’ Conference convened by the Drafting Committee. ■ The
conference also considered a number of amendments to the provisions
proposed by 'the Drafting Committee and by various Ministries of the
Central Government^ as well as some other amendments, relevant to the
subject, which were proposed to be moved in the Constituent Assembly. The
Central Ministry' of Finance circulated three notes at the conference, setting
out its views in regard to the provisions of Part X and certain amendments
designed to further the financial interests of the unitsh

The proceedings of the conference revealed sharp differences over some
of the provisions between the representatives of the Central Government
on the one hand and those of the Provincial Governments on the other. The
first of the controversial proposals was an amendment, suggested by the
Central Ministry of Finance, seeking the deletion of clause (i)(d) of article
250\ according to which the proceeds of taxes on railway fares and freights
were to be wholly assigned to the States. Commending the amendment, K. C.
Neogy, the Central Commerce Minister, observed that taxes on railway
fares and freights really amounted to an enhancement of the fares and freights
and railways being an exclusively Central subject, there was no reason why
the pioceeds of such taxes should not be retained by the Centre. Govind
Ballabh Pant, the Premier of the United Provinces, opposed the amendment
as a move to deprive the units of a potential source of revenue; he argued
that, precisely because the Centre could always enhance fares and freights,
there would be no point in allowing it to appropriate the proceeds of any
taxes levied on them; if any such tax was at all to be levied it must be
for the benefit of some authority other than the Centre. With Alladi
Krishnaswami Ayyar, Gopalaswami Ayyangar and B. N. Ran expressing,
the view that the original idea under the 1935 Act was to treat the taxes
in question as a source of provincial revenue, Ambedkar, who presided over
the conference, brought the discussion on the subject to ,a close by. agreeing
to look into the matter further.

The conference then considered article 25 L At the outset, the Chainnan

iC A. DeK Vol VII,,. pp. 336-7. :

^Seiec^ Documents IV, t5^ pp. 662 E,

Hbid., pp. 671-82.

^A,recommmda,tion to this effect had;, also been 'made by the Expert Committee:
Report, , paras 34 and , 35. Select Documents III, 4(iii), p, 270. , „ , , .

670

FRAMING OF INDIANS CONSTITUTION

drew attention to an amendment, of which notice had been given by T. T.
Krishnamachari, aiming at abolishing the distinction between agricultural
and non-agricultural income for the purposes of income-tax. According to
the amendment, taxes on agricultural income were also to be levied and
collected by the Centre, but the whole of the net proceeds was to be made
over to the States^ The amendment, according to the mover, would not
only save the States the expense involved in collecting taxes on agricultural
income, but would also provide a way out of the difficulty which, in view
of the predominance of agricultural interests in State Legislatures, every
State Government would have to encounter in levying such taxes. But the
proposal did not find favour with any of the Provincial Ministers. Regarding
article 251, a suggestion was made for fixing a definite percentage of the
net proceeds of income-tax for distribution among the States. The Finance
Minister of Madras desired that corporation tax should also be included
in the divisible pool. Both these suggestions were opposed by K. C. Neogy
who said that (1) it would be wrong to lay down a definite allocation in the
Constitution as the intention was to fix the share of the States after
consultation with the Finance Commission, and (2) corporation tax was
never intended to be shared between the Centre and the Provinces under
the 1935 Act. During the discussion on the criteria to be adopted for the
distribution of the proceeds of income-tax among the States, spokesmen of
the Provinces advanced the claims of their respective Provinces for a better
deal than they had under the existing arrangements, but no definite
conclusions were reached.

In regard to article 253, there was general agreement that clause (1)
prohibiting the Union from imposing duties on salt should be omittedl
But the question whether, as suggested in an amendment put forward by
the Drafting Committee, provision for the distribution of the proceeds of
export duties should be included in clause (2) again gave rise to controversy
The Premier of the United Provinces and the Finance Minister of Madras
wanted the continuance of the existing position under the Government of
India Act, 1935, whereby export duties could be distributed among the
Provinces if the Central Legislature so desired. The Premier of Assam went
further to demand that the sharing of export duties should be made
obligatory on Parliament. However, as K. C. Neogy and the Central Ministry
of Finance made it known that the principle of sharing export duties with
the States was wholly unacceptable to them, the Chairman wound up the
discussion with the observation that the general consensus of opinion seemed
to be in favour of letting the article stand as it was with the deletion of
clause (1). Further, in view of the objection raised by the Finance Ministry,
the Chairman suggested that article 254 might be recast so that instead of

Proceedings of the Premiers’ Conference, July 22, 1949. (Not published). See
Minutes of the Conference, Select Documents IV, 15(iii), pp. 686-7,

Vm, p. 688.

RELATIONS BETWEEN THE UNION AND THE STATES

671

entitling the jute-growing States to a share in the export duty on jute or
jute products, it might provide for compensatory grants being given to the
concerned States.

, Two other provisions which occasioned some controversy at the conference
were articles 266 and 269 dealing, respectively, with the immunity of State
Governments from Union taxation, and the issue of borrowing by States.
The Premier of the United Provinces, obviously dissatisfied with article 266
in that it did not exempt the trading and business operations of State
Governments from Union taxation, suggested that the ' provision might be
dispensed with altogether. He said that under the 1935 Act only the business
carried on by a Province outside its territory was subject to Central taxation,
and that the Provinces started industries not for earning profits, but to meet
the vital requirements of the people. In reply, John Matthai, the Central
Minister for Finance, justified the departure from the 1935 Act as being
necessary to forestall any fall in the revenues from income-tax that might
otherwise result from large-scale nationalization. Moreover, it would not
be proper to place private enterprise in a position of disadvantage by
exempting Government undertakings from taxation. The Premier of Orissa
pointedly asked whether the same arguments did not apply to Central
Government undertakings. Matthai agreed that there should be no
differentiation between Central and State undertakings in regard to taxation
and also that it would be necessary to make some concession in the case
of public utility undertakings. Accordingly, he undertook to subject the
article to further examination by his Ministry.

In regard to article 269, opinions at the conference differed widely on
the question whether a State could borrow from outside India without the
consent of the Centre. Ambedkar observed that under the 1935 Act it was
permissible for the Provincial Governments to borrow from outside India
provided the Centre consented. The Draft Constitution proposed to alter
the position; accordingly, ‘foreign loans’ were placed in the Union Lisf and
thereby made the exclusive concern of the Centre. Parliament could, of
course, make provision that a State could borrow outside India with the
consent of the Union. It was agreed that if there was any difference of
opinion between the Union and the States, the opinion of the Union should
prevail and that there should be no provision for arbitration.

The Premiers’ Conference also considered two new articles 264-A and 265-A
formulaled, respectively, by the Ministry of Finance and the Ministry of
Works, Mines and Power. Article 264-A sought to prohibit the States from
imposing any tax on the sale or purchase of goods where such sale or
purchase took place (a) outside the State, (b) in the course of import into
or export out of the territory of India, and (c) in the course of inter-State

^Enti^r 18 of the Union List in ^ Draft Constitution corresponds to entry 37
of the Union List in thO' Constitution,

672 ; ^ FRAMING. O

trade or commerce either with a view to resale by the purchaser or in the
course of his business. The article further laid, down that, except in so far
as Parliament might itself provide otherwise, the States would not tax the
sale or purchase of any goods which Parliament might have declared to be
essential for the life of the community or for the purpose of the industrial
or economic development of the Union.

Commending the nev/ article' to the conference. Finance Minister John
Matthai observed that the Central and Provincial Governments were agreed
on the point that sales tax should be the exclusive right of the units. The
only question that remained to be considered was whether this right should
be absolute, as it had been in the past, or whether some limitation should
be imposed, so that the exercise of the right by the units did not conflict
with the policy of the Central Government with regard to business and
industrial matters. The new article, as placed before the Gonference,
represented, he claimed, the minimum that would be necessary by way of
restrictions on the States’ rights for safeguarding the Centre’s industrial policy
and ensuring a certain degree cf uniformity between the States in the matter
of sales tax.

The explanation evidently did not remove doubts which many of the
participants had about the precise implications of the exemption in regard
to inter-State transactions. Two of the Provincial representatives held the
view that an exemption of this nature might enable buyers to escape sales
tax altogether or unjustly. It was pointed out, for instance, that manufacturers
in the Central Provinces managed to avoid paying sales tax in that Province
by opening depots in Calcutta and elsewhere. The Finance Minister of
Bombay felt that the article raised controversial issues which might better
be left out of the Constitution and decided by some sort of commission or
conference between the Provinces. The suggestion met with opposition
from Ambedkar who considered the article necessary to prevent the States
from using their right to levy sales tax to circumvent the constitutional
guarantee of freedom of trade and commerce".

The Premier of Orissa and Alladi Krishnaswami Ayyar thought that the
best course would be to leave sales tax to the Centre, but did not press
the idea as it was generally regarded as beyond the bounds of practical
politics. As an alternative, Alladi Krishnaswami Ayyar, therefore, pleaded
for providing some safeguards against the States misusing their right to levy
sales tax. He stressed that the specific power of a State in this respect
was restricted to transactions taking place within the State. Explaining the
point, he added that a sale could be said to have taken place within a State
only when the property in the goods passed within the limits of that State
and it was not open to a State to expand the definition of ‘*^sale” artificially.

^Article 16 of the Draft Constitution guaranteed the fundamental right of freedom
of trade, commerce and intercourse throughout the territory of India.

RELATIONS BETWEEN THE UNION AND THE STATES

673

As the discussion did not appear to lead to any agreed conclusions, Ambedkar
brought it to a close by suggesting that the Provincial Premiers might send
their exact amendments to the Drafting Committee which would reconsider
the matter in consultation with the Ministry of Finance.

The other new article — article 265-A — required that authorities set up
under the Union laws for regulating or developing any inter-State river or
river-valley would not, save in so far as Parliament might by law otherwise
provide, be subject to taxation by the States in respect of any water or
electricity stored, generated, consumed, distributed or sold by them*.
Explaining the need for the provision. N. V. Gadgil, the Union Minister
for Works, Mines and Power, and Ambedkar observed that in the absence
of the suggested exemption, inter-State schemes like the Damodar Valley
Corporation might face difficulties through multiple taxation by the States.
Further consideration was finally left to the Drafting Committee.

Lastly, the conference considered the entries relating to taxes in the
Union and State Lists and accepted most of them with little or practically
no discussion^.

The provisions of Part X of the Draft Constitution were considered by
the Assembly in August-October, 1949. In the debate on article 249, which
provided that the proceeds of Union stamp duties and duties of excise on
medicinal and toilet preparations would be collected and directly
appropriated by the States, Brajeshwar Prasad demanded the scrapping of
the entire system of distribution of revenues. His alternative was to vest
all taxing powers in the Union and to empower the President, or some
other independent authority at the Centre, to allocate funds among the
units in accordance with the needs of each unit. His was however a lone
voice; and there being no opposition to the article from any other member,
it was adopted by the Assembly with minor drafting alterations suggested
by Ambedkar’.

Under article 250 the entire proceeds of certain specified taxes and duties
were to be assigned to the States and distributed amongst them in accordance
with principles to be formulated by Parliament.

Sub-clause (c) of clause (1) of the article referred to terminal taxes
leviable on goods and passengers carried by railway or air and did not
cover goods and passengers carried by sea. To rectify this omission, on
August 19, 1949, Ambedkar moved an amendment which was readily accepted
by the Assembly*. But opinion was sharply divided on an amendment
moved by R. K. Sidhva, which sought to stipulate that the proceeds of
terminal taxes would be made over to local authorities in the jurisdiction

Proceedings of the Premiers’ Conference, July 24, 1949 (Not published).
Minutes of the Conference, Select Documents IV, 15 (iii), pp. 690-1, 699-702.

^bid., pp. 691-6.

*C. ^. De*., Vol. IX, pp. 203-9.

*/N4.. pp. 209-10 and 496-7.

of the States. Commending the amendment, Sdhva, as the President of
the All-India Local Authorities Union, said that terminal taxes were a
major source of revenue for local bodies. In fact, since these taxes were
a provincial subject before the 1935 Act, they had always been collected
by local bodies. . He stressed that if local bodies were expected to function
properly they had to be endowed with adequate resources of their own.
Sidhva’s views found support from Shibban Lai Saxena. V. S. Sarwate,
though sympathetic to the needs of local bodies, thought the amendment
unnecessary as the article gave State Governments full discretion to allot
their respective shares of the proceeds of terminal taxes to local bodies or
to nation-building departments. Conditions differed in the various units
and it would not be helpful, he said, to circumscribe the discretion of Stats
Governments in this matter. Among those who opposed the amendment
outright, Brajeshwar Prasad advanced the reason that the Constitution
recognized only two levels of Government, Central and State : the acceptance
of Sidhva’s proposal would amount to recognizing a “third level of
Government by the backdoor” and create difficulties and complications.
Ananthasayanam Ayyangar said that the amendment would interfere with
provincial autonomy. He emphasized that under the article the Centre
was only a collecting agency.

Sidhva’s amendment was negatived; and with the changes suggested by
Ambedkar, the article was voted to stand part of the Constitution. But
soon after the Drafting Committee found it necessary to amplify its scope
further. Accordingly, on September 9, 1949, the article was reopened and
an amendment was moved to make it clear that although legislative power
with regard to “taxes other than stamp duties on transactions in stock
exchanges and futures market” and “taxes on the sale or purchase of
newspapers and on advertisements therein” would rest with Parliament, the
proceeds of these taxes would be subject to distribution among the States.
The Assembly accepted the amendment without any discussion’.

Article 251, dealing with the distribution of the proceeds of taxes on
income, and article 252, authorizing Parliament to levy surcharge on the
taxes and duties mentioned in articles 250 and 251, were both considered
on August 5, 1949, and adopted on the same day with minor drafting
changes. While the latter provision found ready acceptance in the Assembly,
the former evoked conflicting opinions and amendments. Upendranath
Barman proposed an amendment based on the recommendations of the
Expert Committee. It stipulated that not less than 60 per cent of the
net proceeds of Union taxes on income should be assigned to the States
and during the first five years a major portion (58 1/3 per cent) of the share
of the State should be allocated on the basis of collection. The main

K'. A. Deb., Vol. IX, pp. 496-504 and 1184. Entries including these taxes in
the Union List had already been adopted by the Assembly. Ibid., pp. 832-3 and
1172-83.

RELATIONS BETWEEN THE UNION AND THE STATES

675

object of the amendment, Barman explained, was to enable the States to
know with some measure of certainty how much they were going to get out
of this tax so that they might adjust their budgets : the taxes allotted to the
States under the Draft Constitution were either low-yielding or likely to
prove unpopular and, in consequence, unless the article fixed a certain
minimum share in the proceeds of income-tax for the States, it would be
difficult for them to launch upon any permanent development schemed

Shibban Lai Saxena suggested that the distribution of the proceeds of
income-tax between the Union and the States as well as among the States
themselves should be prescribed by Parliament by law and not, as envisaged
in article 251, by the President by order. It was opposed to the concept of
democracy that in such an important matter as the allocation of revenues
between the Union and the States, the decision should be left to the Union
executive. Another critic of the article, B. Das, was all in favour of
accepting the Expert Committee’s recommendation that 60 per cent of the
proceeds of Union taxes on income, including corporation tax, should be
allocated to the States, but disagreed with the criteria for distribution
suggested by the committee. He rejected the collection basis as being unfair
to the under-developed units and urged that the only equitable principle for
determining the share of the various States was the population basis-.

On the other hand, H. N. Kunzru made out a strong case for the provisions
by his reasoned opposition to the amendments put forward by Barman and
Saxena. In view of the “parlous position” of the Central finances as revealed
by the budget estimates for the years 1947-48 and 1948-49, it would be
extremely inadvisable, he thought, to accept Barman’s amendment which
involved an increase in the share of the Provinces in the proceeds of income-
tax from the existing 50 per cent to 60 per cent. The amendment might
benefit the units, but in the ultimate analysis the financial and administrative
stability of the units depended on the position of the Centre. With provision
for the appointment of the Finance Commission and a flexible scheme of
distribution of revenues envisaged in the Draft Constitution, Kunzru observed,
if the financial position of the Centre improved, the financial relations
between the Centre and the States could be reconsidered and more funds
made available to the latter. He also disagreed with the method of
distribution of the States’ share suggested by Barman. To adopt the place
of collection or of production as a basis for calculating the share of a State
was unreasonable, since industries located in a particular State could flourish
only if their products were consumed by people living largely in the rest of
India. Besides, any such test was also inconsistent with the concept of
federalism, which implied a transfer of wealth from the richer to the poorer
units.

'C. A. Deb., Vol. IX, pp. 223-4 and 210-1.

nbid., pp. 211-2 and 218-20.

676

FRAMING OF INDIA’S CONSTITUTION

Referring to Saxena’s amendment Kunzru said that the division of
financial resources on a statutory basis would introduce a very tmdesirable
element of rigidity in the financial relations between the Union and the
States. The provision in the article for the distribution of the proceeds of
income-tax being examined by the Finance Commission was unexceptionable,
and in course of time both the Central Government and the State
Governments were expected to come to place confidence in the judgment
of the Commission and accept its proposals*.

Replying to the debate, Ambedkar expressed his inability to accept the
amendments proposed by Barman and Saxena. Explaining his grounds for
the rejection of Saxena’s proposal he said that if the distribution of the
proceeds was left to Parliament, there would be a good deal of wrangle
between the representatives of the different States and great injustice might be
done by reason of the fact that the decision would rest with certain States
which might have a large majority in Parliament. At the end of the discussion,
Saxena’s amendment was put to vote and lost; Barman withdrew his
amendment’.

Article 253 was considered by the Assembly on August 5 and 8. Clause (1)
of the article declared that “no duties on salt shall be levied by the
Union.” Much of the discussion centred round an amendment sponsored
by the Drafting Committee but actually moved by Mahavir Tyagi, which
sought the deletion of this clause. Indian national sentiment was closely
associated with the abolition of the excise duty on salt, the issue on
which Mahatma Gandhi had launched his mass civil disobedience movement
in 1930-31. One of the first acts of the interim Government was the
abolition of the excise duty on salt. The proposal to revive even the
possibility of this tax therefore aroused considerable opposition, based mainly
on sentiment. Even the President found it necessary to express a personal
opinion in favour of the retention of the clause. He said :

It was because he (Mahatma Gandhi) felt that even the poorest beggar,
when he took his morsel of food, perhaps once in a day, had to pay a
.share of this tax, that he selected this particular tax, and it was for this
reason that when he made his appeal it caught everybody throughout the
country... I say that even today if you are going to reimpose this
tax you will have the same kind of movement which convulsed the
whole country from one end to the other. I would therefore suggest to
the House to consider carefully whether it should not have this clause
in the Constitution as a memento of that glorious struggle. . .

Nehru intervened in the debate; he readily acknowledged that in the
struggle for freedom salt had become the word of power which moved
large masses of human beings and brought about a strange revolution in

’C. A. Deb., Vol. IX, pp. 215-8.
pp. 221-3.

RELATIONS BETWEEN THE UNION AND THE STATES

677

the country. He gave a categorical assurance that neither his Government
nor any successor Government would think in terms of taxing salt. But
in the form in which it was put in the Constitution, it would even prevent
the Government from dealing with foreign salt which might be dumped
into the country. To include a provision of this kind might tie their
hands and create difficulties in future. But Nehru was willing if the
Assembly so desired to go into the matter in a separate law which
could be dealt with by Parliament in detail. The amendment was
accepted by the Assembly^

Clause (2) of the article provided that the proceeds of Union duties of
excise (other than duties on medicinal and toilet preparations) might be
shared with the States if Parliament enacted legislation to that effect. It
evoked considerable criticism although, as in the case of some other
important and controversial provisions of Part X, members did not move
the amendments of which they had given notice earlier. Gopinath Bardoloi,
the Premier of Assam, desired that the sharing of proceeds contemplated
in the clause should be obligatory and not dependent on legislation by
Parliament. His main emphasis was on the special financial difficulties
which his own Province had to face on account of its general economic
backwardness and the increased expenditure in policing the hilly border
areas. Equity as well as the prime need of saving his Province from
financial collapse required that the Centre should give Assam a 50 per cent
share in the revenues it collected from the tea and petroleum produced in
that Province”.

B. Das shared Bardoloi’s view that the distribution of excise duties should
be made obligatory, the necessary law for such distribution being initiated
within six months of the commencement of the Constitution. He fully
supported Assam’s demand for a 75 per cent share of the revenue from
the excise duties on tea and petroleum. Further, he advanced the claim
of his own Province, Orissa, for a 50 per cent share in the excise duty on
tobacoo. Shibban Lai Saxena also endorsed Assam’s claim and urged
reconsideration of all the provisions relating to the distribution of revenues
so as to evolve an equitable distribution based on various factors, including
the needs of a imit, its backwardness, population etc.®.

These suggestions and criticisms did not elicit replies from any member
of the Drafting Committee probably because distribution was a matter for
the Legislature to consider and not one which came within the purview of
the Assembly. With the deletion of clause (1) and a minor alteration in
the wording of clause (2), article 253 was adopted to stand part of the
Constitution*.

^C. A. Deb., Vol. IX, pp. 224-42.

7fnJ., pp. 224-9.

76/d., pp. 229-31 and 237-8.

nbid., p. 242.

678 FRAMING OF INDIA’S CONSTITUTION

Article 254— also considered on August 8 — was, at the outset, sought
to be substituted by a new text proposed by Ambedkar. The new draft
in effect meant that instead of getting a share in the proceeds of the export
duty on jute or jute products^ — as envisaged in the original article — the four
jute-growing States of Bengal, Bihar, Assam and Orissa would receive
annual grants-in-aid from the Centre. The quantum of the grants in each
case was to be prescribed by the President. Once the Finance Commission
was set up, the President would act only after considering its
recommendations. The amendment stipulated that such grants would be
available only for so long as the export duty on jute or jute products
continued to be levied by the Government of India, or until the expiration
of ten years, whichever was earlier. Explaining the necessity for the
amendment, Ambedkar observed that it made an important change in the
existing system of sharing the export duty on jute or jute products. Under
the 1935 Act the jute-growing Provinces were entitled to a certain share
in the proceeds of this export duty'. The amendment sought to do away
with this right because to concede a share to certain States in the export
duty on a particular commodity would be contrary to the general principle
that export duties belonged to the Centre. It would also encourage other
States to lay claim to a share in the export duties on different commodities
produced in their respective areas. If this tendency developed, Ambedkar
feared a very difficult position for the Central Government. The vicious
principle of sharing export duties with the States had therefore to be
definitely abrogated. Since an abrupt withdrawal of the principle might
make it difficult for the jute-growing States to balance their budgets,
provision was made in the revised article for giving them grants in lieu of
their shares in the export duty on jute or jute products'.

In spite of Ambedkar’s explanation, a section of the Assembly considered
his amendment far from satisfactoiy. The first to strike a dissentient note
was Shibban Lai Saxena. Though he shared Ambedkar’s view regarding the
inadvisability of sharing export duties with the States, he felt that it was
undemocratic to leave the allocation of the grants-in-aid to the President.
He suggested that the power should be vested in Parliament’.

The strongest criticism of the revised article came from some members
who represented the jute-growing Provinces. In a long speech, much of
it devoted to the history behind the jute duty, Lakshmi Kant Maitra
described the principle enunciated by Ambedkar as apparently innocent
but actually fraught with grave implications for the jute-growing Provinces
and particularly West Bengal. Emphasizing that economic problems had
to be viewed against the background of realism, he asked;

If this commodity Oute) earns for the Government of India the much

^Government of India Act, 1935, sec. 140(2).

‘C. A. Deb.. Yol. IX, pp. 242-3.

Hbid., p. 243.

RELATIONS BETWEEN THE UNION AND THE STATES

679

needed foreign exchange and dollars in such substantial measure, are not
ihe Provinces which grow and process jute entitled statutorily to some
quid pro quo ?

Biswanath Das (Orissa) opposed the ten-year limit placed by the
article on the period during which Central grants in lieu of a share
in the export duty would be available to the concerned States. The
discontinuance of the grants, he said, would inevitably create difficulties
for those States’.

Two members from Assam, Nichols-Roy and Rohini Kumar Chaudhury,
sav/ no reason for not treating the export duty on tea, grown mostly in
their Province, in the same way as the export duty on jute had been treated
in the article. The principle of grants-in-aid in lieu of a share in export
duty might, they pleaded, be very well extended further to help Assam
which was finding itself virtually in a state of bankruptcy^.

Kunzru agreed with Ambedkar that export duties should be purely central
and the entire proceeds of such duties retained by the Centre. The acceptance
of this salutary principle could in no way harm the interests of the units; if a
State was unable to balance its budget, the Centre would in any case be
bound to help it. That apart. Parliament would never allow the Central
Government to ignore the needs of the States. Kunzru was critical of the
proposal to allow the Finance Commission to have a say in regard to the
quantum of grants-in-aid to be given to the jute-growing States. He made
a specific point about the role of the Finance Commission ; it should normally
consider the needs of Provinces and recommend to the Centre what should
be the grants to be given for various purposes and also lay down how much
money might be raised as a loan. But he did not consider it desirable that
the Finance Commission should deal with allocations of individual sources
of revenue; it should be for the Central Government to decide the manner
in which the recommendations of the Commission for financial assistance
should be made effective — ^whether by way of grants or by sharing of
particular sources of revenue. He therefore suggested that it was not
necessaiy to consult the Finance Commission on this particular item^

Ambedkar rejected Saxena’s amendment and reiterated his objection to
involving Parliament in the matter of distribution of revenues. In suggesting
a change in the original article, he said, the Drafting Committee had merely
followed the Expert Committee’s recommendation that the system of sharing
the jute duty should be altered. As regards the point raised by Kunzru,
Ambedkar justified the provision authorizing the President to allocate
grants-in-aid to the jute-growing States after taking into account the
recommendations of the Finance Commission, as the most reasonable
compromise between the two rather extreme courses of leaving the matter

’C. /l. Dei., Vol. IX, pp. 245-52,

'Ibid., pp. 243-5 and 252-5.

mid., pp. 255-8.

680

FRAMING OF INDIA’S CONSTITUTION

to Parliament or to the President acting independently. Article 254, as
moved by Ambedkar, was adopted*.

The Assembly then proceeded to consider a new article 254-A moved by
Ambedkar on behalf of the I>rafting Committee. No Bill affecting taxation,
it laid down, in which the States were interested or. otherwise altering the
financial distribution between the Union and the States, would be introduced
in either House of Parliament except on the recommendation of the
President. The provision was based on section 141 of the 1935 Act. After a
short discussion the new article was adopted for inclusion in the Constitution’.

Regarding article 255, dealing with Union grants-in-aid to the States, two
amendments were moved by Ambedkar, which respectively aimed at (i)
extending to the Part III States the benefit of the provision regarding specific
grants for promoting the welfare of Scheduled Tribes and the administrative
development of the tribal areas (originally it was applicable to the Part I
States only); and (ii) providing Assam with an increased grant-in-aid to
meet the State’s expenses in respect of its tribal areas’.

Another amendment was moved by Nichols-Roy to the effect that until
Parliament enacted legislation allocating grants to the States such grants
could be made by the President*. It was welcomed by all sections of the
Assembly as it was realized that unless the President was authorized to
intervene, the State might have to go without any grants whatsoever in the
interim period between the adoption of the Constitution and the enactment
of the requisite legislation by Parliament.

For the rest, the consideration of the article was mainly utilized by
members who felt aggrieved by the pro-Centre bias of the financial provisions,
as yet another opportunity for ventilating their grievances. Notable among
the critics was Muhammad Sa’adulla, a member of the Drafting Committee,
who participated in the debate as the representative from “the very benighted
Province of Assam” and opened his speech with the sweeping observation
that the adoption of the preceding articles relating to the distribution of
revenues had passed “the death sentence upon all hopes and aspirations of
the Provinces”. With the rejection of Assam’s claim to a share in the
revenues which its products gave to the Centre, he saw hope only in adequate
grants being made available under the provisions of article 255. Even that
hope, he felt, had been shattered as under the article the whole thing had
been left to the decision of Parliament. He concluded on a note of
pessimism and bitterness that the Centre would not give sufficient financial
help to them*.

■C. A Vol. IX, pp. 259-61.

‘Ibid., pp. 261-4.
mid., pp. 264-5.
mid., p. 274.
mid., pp. 2S0-93.
mid., pp. 265-73.

RELATIONS BETWEEN THE UNION AND THE STATES

681

Sa’adulla’s dissatisfaction with the provision was shared by many members,
though the grounds emphasized in each case were not the same. Thus,
urging tliat the Constitution would stultify itself if it did not provide the
various States with a basic standard of revenue, B. Das said that occasional
charities from the Centre, such as the States might get under article 25S,
were no answer to the needs and demands of the underdeveloped States.
Rohini Kumar Chaudhury maintained that the article in no way made it
compulsory for Parliament to sanction grants for the States. He was
apprehensive that the interests of the smaller States would be ignored if,
as was quite conceivable. Parliament became an area for tussles between
the different States. Thakurdas Bhargava, who hailed the article as one
of the symbols of India’s solidarity, commented that he would have been
more happy if the duty had been enjoined on Parliament to give assistance
to such of the States as stood in need of iti.

At the end of the debate on August 9, 1949, Ambedkar announced his
acceptance of Nichols-Roy’s amendment, and thereupon the article, as
modified by the amendment of Ambedkar and Nichols-Roy, was adopted
to be added to the Constitution^

Article 256 was adopted with a modification suggested by Ambedkar,
clarifying beyond all doubt that State laws relating to taxes in respect of
professions, trades, callings or employments would not be open to challenge
on the ground that they related to a tax on income. The amendment was
considered necessary in view of the fact that under the Constitution taxes on
income would be within the exclusive authority of the Union. Criticism was
restricted to clause (2) of the article which laid down that the total amount
a person could be called upon to pay to the State or to a local authority
by way of taxes under this article would not exceed Rs. 250 per annum.
It was contended, among others by Shibban Lai Saxena and R. K. Sidhva,
that the limit prescribed by the clause would greatly impair the utility of
the profession tax for the local bodies which were practically starved of
finances. There was considerable support for an amendment, moved by
Saxena. seeking to raise the maximum limit of the tax to one per cent of
the annual income or one thousand rupees. The amendment was opposed
by Ananthasayanam Ayyangar and rejected by Ambedkar. Both maintained
that the scope of the article had necessarily to be restricted, being essentially
in the nature of an exceptional provision. But while Ayyangar stressed the
fact that the profession tax was an invasion of the income-tax field which was
otherwise reserved for the Centre, Ambedkar advanced the reason that the
article was really an exception to the general rule that in the distribution
of resources the Constitution recognized only two sets of authcarities — the
Union and the States — and did not concern itself with the financial resources

iC. A. Deb: VoL IX, pp. 275-80 and 290-2.

Ubid: pp. 293-4.

682

FRAMING OF IN0U’S CONSTITUTION

of local authorities, which in fact had no plenary jurisdiction and were
subordinate to the States. He expressed his inability to enlarge the exception
any further'.

Article 258, relating to financial agreements with the Part III States, was
brought forward for the consideration of the Constituent Assembly only
after the integration of the Indian States with the rest of the country had
been accomplished. The successful completion of the process of integration
was formally announced in the Assembly by Vallabhbhai Patel on October
12, 1949. The next day, Ambcdkar moved an amendment seeking to recast
clause (1) of article 258. The amendment and the article as modified thereby
were ado'pted practically without any discussion. Simultaneously, a new
article 267-A guaranteeing payment of privy purses to the Rulers of the
States, which had also been proposed by Ambedkar, was added to the
Constitution”.

Article 258, as adopted by the Assembly, provided, in effect, that for a
maximum period of ten years from the commencement of the Constitution,
the financial relations between the Union and the Part III States would in
certain respects be governed by agreements and that such agreements would
prevail over the constitutional provisions relating to the distribution of
revenues. The matters which could be so regulated by agreements were :
(a) the levy and collection of any Union tax or duty in a Part III State
and the distribution of the proceeds thereof ; (b) the grant of any financial
assistance by the Government of India to such a State in consequence of
the loss of any revenue which that State previously derived from any tax
or duty leviable under the Constitution by the Centre or from any other
sources; and (c) the contribution by such a State in respect of privy purses
paid by the Central Government to the former Rulers. The proviso
authorizing the President to modify or terminate any such agreement after
the expiration of five years from the commencement of the Constitution
remained unchanged.

On the face of it, the article as passed by the Assembly did not indicate
any advance over the original provision regarding the financial integration
of the Part III States. The character of the agreement sought to be
protected by the article had however undergone a radical change since the
time the Draft Constitution had emerged from the Drafting Committee.
As Sardar Patel told the Assembly on October 12, 1949, the new arrangements
negotiated with the Indian States were, broadly speaking, based upon
complete equality between the Provinces and the States in regard to the
distribution of taxing powers as welt as the sharing of divisible Union taxes,
grants-in-aid and other forms of financial assistance. Subject to certain
adjustments during the transitional period, the Part III States were to have

'C. A. Deb., Vol. IX, pp. 294-301.

‘I bid., Vol. X, pp. 176 and 208.

RELATIONS BETWEEN THE UNION AND THE STATES

683

the same fiscal relationship with the Union as the Part I States. Article
258 only allowed some time for the necessary adjustments to be madeh

Discussions on articles 260 and 261 were marked by sharp differences over
the functions to be assigned to the Finance Commission and the powers of
the President vis-a-vis Parliament as regards the recommendations of the
Commission. Two amendments proposed by Ambedkar commended
themselves to the Assembly. One suggested revision of clause (1) of article
260 so as to ensure the setting up of a Finance Commission within two
years from the commencement of the Constitution and thereafter at the
expiration of everj' fifth year or earlier as the President considered necessary.
The other amendment sought to amend article 261 so as to clarify that the
recommendations of the Finance Commission were to be laid before each
House of Parliament^ (The article, as it stood, referred only to ‘Parliament’.)

Initiating the discussion on article 260, Hriday Nath Kunzru reiterated his
view that as a matter of general principle the Finance Commission

should have nothing to do with the allocation of the shares of the Central
Government and the Provincial Governments in the proceeds of any tax.
This is a matter that should be decided by the Central Government.. .
in consultation with the Provinces. If this is done I am sure that the
Central Government will be able to discharge its supreme responsibility
and also to justify its position to the Provinces. No situation will in that
case arise which will compel the Central Government practically to annul
the provisions of all the financial articles that we have so far discussed.

Kunzru referred to the precedents in the Commonwealth countries of
Australia and Canada. He pointed out that in Australia the function of the
Finance Commission was to examine the demands of the Provinces and
scrutinize their budgets and then recommend how much money should be
given to them in order to make up for their deficits or for any other purpose.
It has so far as I know not been authorized to say to the Commonwealth
Government that it should give a certain proportion of the proceeds of
a certain tax to the States.

In Canada a proposal was made by the Dominion Government that the
Provinces should agree to the appointment of a Finance Commission which
would recommend periodical grants to the Provinces in consideration of
their needs : but it was never suggesited, said Kunzru, that the proposed
Finance Commission should have the power to say to the Dominion
Government that a certain proportion of the proceeds of income-tax should
be made over to the Provinces. Following these precedents Kunzru said that
the Constitution should not contain any provision requiring consultation
with the Finance Commission on the question of distribution between file
Centre and the Provinces of the “divisible heads” of revenue. He was willing

■C. A. Deb., Vol, X, pp. 161-8.

Vol. IX, pp. 303 and 315.

684

FRAMING OF INDU’S CXJNSTITimON

to make an exception in respect of the initial distribution of income-tax in
view of the fact that the Assembly had already accepted the position that
the Finance Commission would be consulted; but he was opposed to such
consultation on the distribution of any other heads of taxation, like Central
excises. Accordingly he suggested an amendment to clause (3) of article 260
which proposed that the important issues on which the Finance Commission
should be consulted would be:

(1) the initial distribution between the States and the Centre of the net
proceeds of taxes on income;

(2) the allocation between the States of their respective shares of the net
proceeds of other divisible taxes but not the proportion in which such
taxes would be shared between the Union and the States;

(3) the principles which should govern the grants-in-aid to the States
from the Central Government.

Kunzru added that this would still leave it open to the President to
consult the Finance Commission even on the other issues in case he so desired.
He was apparently of the view that the increased needs of the States should
more appropriately be met by increased subventions :

Should the provinces stand in need of more money later on, should
their recurring expenditure increase to such an extent as to need, on
prudent financial and economic grounds, not large grants but a definite
share in the proceeds of certain taxes, then the matter ought to be considered
by the Government of India in consultation with the Provinces.

Kunzru claimed that his proposal would obviate the need for inserting
in the Constitution such a drastic provision as article 277 to authorize the
Central Government practically to annul the financial articles when the
country was faced with an emergency*.

Earlier, when the Assembly discussed article 254, relating to the grants-in-
aid to Bengal, Bihar, Assam and Orissa, in lieu of their share of the export
duty on jute, Kunzru had observed that a convention should grow up that
the Government would normally, except in emergencies, accept the
recommendations of the Commission, and it was on the basis of this
assumption that he suggested that the terms of reference of the Commission
should be more restricted.

Kunzru’s amendment was opposed by Shibban Lai Saxena who thought
that it would be wrong to assume that the recommendations of the Finance
Commission would by convention be binding on the President. To adopt
the basis that any recommendation made by the Finance Commission should
be treated as binding would be undesirable and would in fact give the
Finance Commission a position not intended by the Constitution. Saxena
wanted that the ultimate authority to determine the question of distribution
of the divisible items of taxation between the Centre and the States should

■C. X Z)e6., VoI. IX, pp. 303-6.

RELATIONS BETWEEN THE UNION AND THE STATES

685

be Parliament. If however Parliament was to exercise this function
adequately, it should have full information on the financial state of the
country and detailed knowledge of the issues involved in each item of
taxation. For this purpose it would be necessary that the Finance Commission
should have full authority to go into every aspect of every duty and, the
condition of the Centre and the Provinces, so that its report might enlighten
Parliament. In short, the Finance Commission should have wide terms of
reference, appropriate to its standing as an expert advisory body, but the
final decision should be that of Parliament. He therefore opposed any
abridgement of the Commission’s function*.

Replying to the debate, Ambedkar explained that clause (3) of article 260
had to be read with the earlier, provisions of the Part relating to the divisible
taxes, namely, articles 251 and 253. Article 251 left the distribution of
the proceeds of income-tax to the decision of the President, while under
article 253 the distribution of the proceeds of central excise duties was to
be determined by law made by Parliament. Article 260(3) provided that
the Finance Commission would make recommendations with regard to both
these matters. He appreciated Kunzru’s view that if variations in the initial
distribution of income-tax were left to be decided by the President on the
recommendations of the Finance Commission, the hands of the President
might be so tied as to force him. in certain circumstances, to do injury to the
Centre’s finances. However, there was another, side to the matter. It was
perfectly possible to imagine all the States joining in a clamour for a greater
proportion of the proceeds to be made over to them. In such a situation, if
there was a report of the Commission recommending that it would be
inadvisable for the Centre to part with any more revenue, it would strengthen
the hands of the President in refusing to accede to the demands of the
States. On balance, Ambedkar felt there was no case for cutting down the
Commission’s jurisdiction. He therefore expressed his inability to accept
Kunzru’s amendment. As modified by Ambedkar’s amendment, article 260
was adopted to be added to the Constitution^

Article 261 came in for a great deal of criticism from several members
who maintained that the ultimate control in all financial matters must rest
with Parliament. Thus, drawing attention to the language of the article,
H. V. Kamath pointed out that the explanatory memorandum, which the
President would cause to be laid before Parliament along with the

‘C. A. Deb., Vol. IX, pp. 308-10. On the question whether the recommendations
of the Finance Commission would be binding on the President, B. N. Rau was of
the view that as a matter of strict law the President would be free to depart from
them on the advice of his Cabinet. However, since the Commission was a
quasi-arbitral body whose function was to do justice as between the Centre and
the States, no Ministry should advise the President to act otherwise than in
accordance with the recommendations of the Commission. See B. N. Rau, India's
Constitution in the Making. 2nd edn., pp. 411-3.

“G. X Deh.. Vol. IX, pp. 311-5.

recommendations :of the Finance Commission, would only relate to tlie actidii
taken on the recommendations of the Commission: this meant that the
Bresident or the Union Cabinet could take what action they liked on the
recommendations of the Commission and then present Parliament with a
jail ■accomplL He could not accept such a "‘humiliating position” for the
Parliament of the country: the last word as to the action to be taken on the
recommendations of the Commission should remain with the Parliament.
Similar views were expressed by Shibban Lai Saxena who proposed that,
after the report of the Finance Commission was received, the President
should lay before each House of Parliament a memorandum containing bis
proposals for action. It would then be open to the House of the People
to amend the proposals^

Thakurdas Bhargava, who supported the principle underlying the proposals
of Kamath and Saxena, said that since the report of the Finance Commission
would furnish the basis for proposals vitally affecting the States, it stood
to reason that the States should have a say in the matter through their
representatives in Parliament. He also felt that the Commission would not
command the confidence of the States if the President or his Cabinet were
to be the sole judges of its recommendations^

T. T. Krishnamachari and Ambedkar replied to the criticism. To the
former it appeared that much of the opposition to article 261 , as well as
to the preceding provision, was basically due to a misapprehension in regard
to the scope of the work of tlie Finance Commission. His own view was
that the Commission, as envisaged in the Draft Constitution, was being
set up with a limited objective. In order to assure the States that they
would have a fair deal, the Drafting Committee had included in the

Constitution itself a body which would function as an aid to the administrative
machinery; the recommendations of the Finance Commission would be
decided on by the executive. Krishnamachari was definite in his view
that it should be left to the executive to undertake the onerous doty of
distributing between the various Provinces, on principles laid down by
Parliament, the proceeds of certain taxes levied and collected by the Centre.
Krishnamachari made another point that Saxena was really throwing

an apple of discord in urging' Parliament to undertake this onerous
responsibility.

It is in order to prevent members of Parliament making claims on an
. individual or provincial basis and each group insisting on the rights of
particular Provinces that we have proposed to leave the thing in the
hands of an administrative machinery, an arbitral body to decide. The

executive can accept their recommendations if they are feasible and

desirable.

'C. A. Deb.. Voi. IX, pp. 316-9.

. ^ibm PP- '320-1. , ■ '

RELATIONS BETWEEN THE UNION AND THE STATES

687

Likewise, Ambedkar felt that the amendments of Kamath and Saxena were
based on a misunderstanding of article 261 and were unnecessary ; the shar-
ing of the divisible sources of revenue between the Union and the States
was to be governed by the provisions contained in articles 251 and 253. So
far as the division of the proceeds of income-tax was concerned, article 251 —
already adopted by the Assembly — ^left the matter to the President after
considering the recommendations of the Finance Commission : the issue was
closed and it would not be possible to alter the position by any amendment
of article 261. As for the other divisible source — Central excise duties —
article 253 laid down that the principles of distribution were to be settled
by laws made by Parliament. The President could not do that himself : and
in this connection, the reference in article 261 to the action taken on the
Finance Commission’s recommendations merely meant that the President
would say, as he was bound to do, that a Bill would be introduced before
Parliament to sanction the distribution of the proceeds of the excise duties.
After this explanation, the amendments of Kamath and Saxena were negatived
and article 261, as modified by Ambedkar, was adopted'.

Article 262, authorizing the Union and the States to make any grants
for any public purpose, was adopted without discussion.

As already noticed, the Draft Constitution contained two articles on
borrowing. Article 268 declared that the executive power of the Union
extended to borrowing on the security of the revenues of India within such
limits, if any, as might be prescribed by Parliament by law, and to the giving
of guarantees within such limits, if any, as might be so fixed. There was
some controversy over these provisions, and some members — Shibban Lai
Saxena, H. V. Kamath and K. T. Shah — felt that the power conferred on the
executive under this article might be so used as to result in great prejudice
to the solvency and interests of the country. They suggested various ways
in which the power of the executive could be controlled. Saxena’s intention
was to insist that the executive should always take Parliament into confidence
before undertaking any borrowing. Kamath wanted the article to be so
amended as to enable Parliament not merely to fix the limits of borrowing
and the giving of guarantees but also to see on every occasion that the
purpose of the loan or the purpose of giving a guarantee was justified by
the circumstances and in complete consonance with the policy adopted by
Parliament in the country’s internal as well as international relations. He
was mainly anxious not to be faced with a position in which a loan was
taken in return for a secret military or political commitment. K. T. Shah
said that the Finance Act should lay down how much should be borrowed
every year, and that Parliament should keep itself informed of the state
of the national credit. He was also apprehensive that if borrowing was left
to the executive, the entire country’s future might be mortgaged. He thought

■G. /< . Vol. IX, pp. 325-^

688

FRAMING OF INDIA’S CONSTITUTION

that even Parliament’s powers in the matter of the use of the
national credit might require to be circumscribed by a clear provision
in the Constitution.

Replying to these apprehensions, Ambedkar said that the article as it stood
would be sufficient to cover all the contingencies. The article specifically
stated that the borrowing power of the executive would be subject to such
limitations as Parliament might by law impose. It would be for Parliament
then to prescribe these conditions.

1 sHould have thought it very difficult to imagine any future Parliament
which will not pay sufficient or serious attention to this matter and
enact a law... I even concede that there might be an Annual Debt
Act made by Parliament prescribing or limiting the power of the
e.xecutive as to how much they can borrow within that year.

Following this explanation, the article was adopted with a verbal change'.

The second article on borrowing, draft article 269, gave similar powers
of borrowing to State Governments; enabled the Government of India to make
loans to States and give guarantees in respect of loans raised by States ; and
required States to obtain the consent of the Government of India before
raising loans on their own initiative if part of any loan made by the
Government of India was still outstanding. All this applied to borrowing
in India. “Foreign loans” was an exclusively Union subject. This article,
with drafting amendments not involving any material modification, was also
adopted by the Assembly without much discussion^

Soon after the Premiers’ Conference several suggestions’ were received by
the Drafting Committee from Provincial Governments in regard to (i) the
provisions defining the extent cf immunity of Union and State property in
the matter of taxation contained in articles 264 and 266; (ii) new article 265-A
proposed by the Central Ministry of Works, Mines and Power ; and (iii)
a new article 264-A, proposed by the Central Ministry of Finance. This
new article sought to place certain important restrictions on the power of
the States to levy taxes on the sale or purchase of goods.

With regard to article 264 — ^the exemption of Union properties from State
taxation— the Governments of East Punjab and West Bengal were of the
view that Union properties should not be exempt from local taxation of a
non-discriminatory character. The Premier of the United Provinces
maintained that income accruing to the Union from any trade or business,
as well as properties occupied for such operations, should be liable to State
taxes in the same way as similar income and the property of the States would
be liable to Union taxation under article 266. The Government of Assam
was agreeable to the principle of exemption of Union property from taxation
by the States, but insisted tW article 264 could be retained only if article 266

^C. A. Deb., \ro\. IX, pp. ^^5-9.

‘Ibid., pp. 340-3.

‘Select Documents IV, 16, pp. 706 S.

RELATIONS BETWEEN THE UNION AND THE STATES

689

was suitably modified to provide reciprocity from the side cf the Union
towards the properties of the States.

New article 265-A, proposed by the Central Ministry of Works, Mines
and Power, was strongly opposed by the Governments of Bombay, Madras,
East Punjab and West Bengal. It may be recalled that this article sought
to secure exemption from a sales tax on water and electricity produced or
sold by authorities in charge of inter-State river or river valley development.
It was contended that to exempt Central inter-State river or river valley
authorities from State taxation in respect of water or electricity consumed,
distributed or sold by them would not only be highly discriminatory against
similar undertakings which did not enjoy the immunity and the consumers
who got their supplies of water and electricity from such undertakings, but
would also result in the loss of considerable revenues to the States. Only
the Assam Govenunent appreciated the spirit of the proposal; and it felt
that, in fairness to the States, similar reciprocal exemption should be extended
by the Union towards the electricity and irrigation works of the States.

In their criticism of article 266, which dealt with the immunity of State
Government property from Union taxation, the Provinces were almost
unanimous. They were of the view that the provision was inequitable and
one-sided in so far as it sought to subject trade and business operations of
the State Governments to Union taxation, while under article 264 States were
debarred from taxing the property of the Union. Such a provision, it was
felt, was bound to retard the industrial development of the Provinces by
taking away the incentive for State enterprise. Tlie Governments of Assam,
the Central Provinces, East Punjab and the United Provinces protested further
that the article was a retrograde step since it took away the immunity from
federal taxation conferred by the 1935 Act on trading and business operations
of Provincial Governments within the respective provincial limits. A redraft
of the article, suggested by the Central Finance Ministry, was even less
acceptable to the Provinces than the original provision. The redraft laid
down, inter alia, that certain specified business (such as hydro-electric,
electric and gas supply, and transport and industrial undertakings) would
not be eligible for the exemption from Union taxation extended to
operations considered incidental to the ordinary functions of the Government
of a State.

The actual changes suggested by the Provincial Governments in regard
to the article varied considerably. Thus, the Government of the United
■Provinces wanted the article to be reworded so as to restore the position as it
existed under the 1935 Act. Orissa, East Punjab and West Bengal were eager
mainly to ensure that there would be no discrimination between Union
undertakings and those of the States in the matter of taxation and that on
this principle public utility undertakings of the States would not be subject
to Union taxation. Bombay and the Central Provinces demanded that the
article should simply lay down the rule that the Government of a State

690

FRAMING OF INDIA’S CONSTITUTION

would not be liable to Union taxation in respect of lands or buildings situated
within the territory of India, or income accruing, arising or received within
such territory, and stop at that ; in other words, that only the opening
paragraph of the draft article should be retained.

New article 264-A proposed by the Ministry of Finance was equally
unpopular with the Provinces, though the provisions of sub-clauses (b) and
(c) of clause (1) prohibiting the States from imposing a sales-tax at the stage
of import into or export out of India were generally considered
unexceptionable. In regard to sub-clause (l)(a), which enjoined a similar
prohibition in respect of sales or purchases taking place outside the State,
the Bihar Government was of the view that the provision was unsatisfactory
in the absence of any criteria for determining the place where a sale might
be said to have been effected. Since the general law relating to sales of
goods left largely indeterminate the question as to where a sale might be
held to have taken place, it would be easy for dealers to avoid payment
of sales tax in the State where the contract of sale was made as well as in
the State where the goods were situate. It was necessary that the sub-clause
should be replaced by a positive provision defining the place of sale in a
way that would be equitable in the conditions and circumstances of all the
Provinces. Similar views were expressed by the Premier of the Central
Provinces and Berar. The Premier of the United Provinces proposed a new
proviso making it clear that the exemption from State taxes would apply
only when the goods sold or purchased were outside the taxing State.

The main targets of criticism were sub-clause (d) of clause (1) and clause
(2), which respectively prohibited the States from taxing (i) sales or
purchases taking place in the course of inter-State trade or commerce and
(ii) sales or purchases of goods which Parliament might declare to be essential
for the life of the community or for the purpose of the industrial or
economic development of the Union. The Bihar Government pointed out
that the complete exemption from a tax on sales to dealers, manufacturers
or building contractors, as envisaged in sulnclause (l)(d), would result in a
drastic reduction of the sales tax revenue which happened to be the only
important source of revenue left with the States. It would adversely affect
the poor and industrially backward units like Bihar, Orissa and the Central
Provinces which did ijpt possess large commercial centres and where the
purchasing power of the people was low. Moreover, since it would be
administratively impossible to verify whether purchases made in one State
by dealers of another State were with a view to resale etc. and not for
private consumption, the draft clause would inevitably lead to large-scale
tax evasion. The sub-clause would also hit States which levied the sales
tax at a single stage much more seriously than others, like Madras, which
had a multi-point sales tax system. The appropriate course would, therefore,
be not the prohibition of a tax on inter-State sales but the fixation of ceiling
rates of tax on despatches from one State to another.

RELATIONS BETWEEN THE UNION AND THE STATES

691

Madras and the United Provinces shared Bihar’s view that sub-clause (d)
of clause (1) might be abused for evasive purposes. To remedy this defect
the former suggested that all sales from one State to another might be
exempted from sales tax, irrespective of the purpose for which the goods
might be used by the purchaser. The exemption should apply only to the
last sale taking place in the course of an inter-State transaction. Bombay made
it known that it could not agree to forego its substantial revenues derived
from taxes on inter-State transactions unless some other compensatory
sources of revenue were made available to it.

As for clause (2), the Bihar Government regarded it as a serious
encroachment on the legislative power of the States in respect of the levy
of sales tax. There was no justification for assuming that the States would
not have due regard for the life of the community or for national development
in the industrial or economic sphere. That apart, the exemption in regard
to goods considered essential for industrial development, such as coal, steel
and cement, would again mainly affect the poorer States which happened
to be the producers of most of these goods.

West Bengal objected to the clause on the ground that, when a taxing
power was conferred on the State Legislatures, it was not desirable to
empower the Central Legislature to r^ulate the scope of such power.
Bombay felt that the provisions were too wide and vague and were bound
to lead to needless friction between the Union and the States as also between
the various States. It suggested that the essential goods desired to be
exempted from State taxation should be specifically mentioned in the article
and not left to be decided by Parliament. In the alternative,
Bombay favoured, along with the Central Provinces and Orissa, a revision of
the clause so as to bring it in line with the recommendations of the Finance
Ministers’ Conference held in October 1948. This meant, briefly, that while
goods essential for the life of the community would be immune from the
operation of State sales tax laws, the States would be competent to levy
sales taxes within the range of a prescribed ceiling on goods which were
considered essential for the purpose of industrial or economic development
of the Union.

Madras found the clause totally unacceptable because it would cut away
the bulk of their sales tax revenue. The United Provinces agreed with the
principle underlying the clause but nevertheless felt that there was no need
to embody it in the Constitution. The clause could be deleted and the
necessary arrangements made in regard to the matter in some other manner.

Reconsidering the provisions in the light of the comments of the Provincial
Governments, the Drafting Committee decided, in consultation with the
Central Ministry of Finances to introduce some important changes in

’■See revised drafts of articles 264, 264- A, 26S-A and 266 prepared by the
Ministry of Finance (August 28, 1949). Select Documents TV, I6{u% pp. 731-2.

FRAMING OF INDIA’S CONSTITUTION

artides 264, 266 and the new artides 264-A and 265-A. The redraft of
artide 264. as eventually agreed upon by the committee, made two important
departures from the original provision. First, in clause (1), exempting the
property of the Union from all taxes imposed by a State or a local authority,
the qualifying words “save in so far as Parliament may by law otherwise
provide” were dispensed with, thus conferring on Union property an absolute
exemption from State or local taxation.. Secondly, clause (2) was modified
to save existing liabilities to taxation by local authorities (but not the State
Governments) until Parliament by law provided otherwise.

A significant modification made in the new article 265-A explicitly permitted
the State Legislatures to enact laws imposing taxes in respect of water or
electricity consumed, distributed of sold by authorities set up by Parliament
for developing any inter-State river or river valley, subject to the condition
that no such law would have any effect without being assented to by the
President.

The redraft of article 266 exempted the property as well as the income
of a State from Union taxation ; but it recogifized the authority of Parliament
by law to provide for the imposition of a tax in respect of a trade or business
carried on by, or on behalf of the Government of a State, or any property
used or occupied for the purposes of a trade or business. The liability to
Union taxation was not to apply, however, to any trading or business
operations which Parliament might by law declare as being incidental to the
ordinary functionsi of government.

Article 264-A proved a diflicult proposition. For a considerable time,
members of the Drafting Committee were unable to arrive at agreed
conclusions on such important issues as the scope of the e.xemption in regard
to inter-State sales and the definition of the place of sale. Thus, as late
as September 6, 1949, Alladi Krishnaswami Ayyar observed that he was
not in favour of any provision confining the levy of sales tax only to
the consumer or the last vendee: such a provision would immediately
nullify the Madras Sales , Tax Act and thereby dislocate the finances of
that Province*.'

Eventually, in October 1949, the committee succeeded in producing an
agreed draft®, with some important concessions on the points raised earlier
by the Provincial Governments., To begin with, in clause (1), prohibiting
State taxation of sales or purchases taking place outside the State or in the
course of import or export at the national level, an explanation was introduced
defining the place of sale in relation to an “outside the State” transaction.
The explanation provided that a sale or purchase would be deemed to have
taken place in the State in which the goods had been actually delivered as a
direct result of such transaction for the purpose of consumption in that

*5e/e« Dcicwnenfj IV, 16(iii), pp. 732-4.

*C. ,4. De6., Vol. X, pp. 325-6.

RELATIONS BETWEEN THE UNION AND THE STATES 693

State, notwithstanding the fact that under the general law relating to the
sale of goods the property in the goods had by reason of such sale passed
in another State. Again, clause (2) of the new draft of the article,
corresponding to sub-clause (d) of clause (1) of the article as originally
formulated, prohibited the States from taxing all sales and purchases of goods
in the course of inter-State trade or commerce. But the prohibition could
be waived by Parliament and. further, existing sales tax laws of the States
were to continue to be operative till the end of March 1951. Finally, the
exemption in regard to goods considered essential for the purpose of industrial
or economic development was dropped. For goods that might be declared
by Parliament to be essential for the life of the community, it was provided
that no law made by a State Legislature imposing a tax on any such
commodity would have effect unless it had received the assent of the
President.

When articles 264, 265, 265-A and 266 were considered by the Assembly
on September 9, 1949, article 265 and new article 265-A, as finally settled
by the Drafting Committee, were adopted without evoking any discussion*.
But the other two provisions, which were moved by Ambedkar, encountered
some opposition. R. K. Sidhva strongly opposed article 264 on the ground
that exemption of Union properties from local taxation would seriously
jeopardize the finances of local bodies. Besides, there was no equitable
reason for according a privileged position to Union properties by treating
them on a different footing from State properties in the matter of local
taxation. Lakshmi Kant Maitra and C. C. Shah, while not disputing the
principle underlying the article, shared Sidhva’s concern over the possible
adverse effect of the provision on the revenues of local self-governing
institutions. If Parliament could be empowered to tax the trade and business
operations of the States under article 266, Shah asked why there should not
be a corresponding provision in article 264 permitting the States and the
local authorities to tax Union properties connected with similar activities
of the Union’.

Replying to the debate, Ambedkar observed that although from the purely
constitutional point of view local taxation of Union properties was open to
very serious objection, it had been decided not to interfere with the existing
powers of local bodies in this respect. There was a lacuna, he admitted,
in clause (1) of article 264 in that while local bodies which had already
been levying certain taxes on Central properties had been given a fresh
sanction to levy such taxes by clause (2), others which had not exercised
that right so far would be under a total disability to tax Union properties.
The discrimination was obviously unjustified and he was prepared to remove
it by bringing back in clause (1) the words “save in so far as Parliament

^ />e6., Vol. IX, pp. 1I60-I.

'-Ibid, pp. 1147-56.

694

FRAMING OF INDIA’S CONSTITUTION

may by law otherwise provide”, so that, subject to Parliament’s approval
it would be possible for local bodies to tax Union properties*.

Ambedkar’s explanations persuaded Sidhva to withdraw his amendment.
Article 264 was adopted by the Assembly in the form in which Ambedkar
had moved if.

Ihe debate on article 266 was dominated by some members representing
the States of Travancore-Cochin and Mysore. They were apprehensive of
the provision harming their thriving State industries and other Government
undertakings. Initiating the discussions, P. T. Chacko from Travancore-
Cochin reiterated the familiar objection that Union taxation of industrial
or commercial activities of State Governments would check the expansion
of industrialization and, in effect, reduce the capacity of the States to serve
their people and discharge their ordinary governmental functions. His amend-
ment sought to lay down that liability to Union taxation would arise only
when a trade or business was carried on by a State outside its own territories.

P. S. Nataraja Pillai also from Travancore-Cochin suggested that any
trade or business which was being run by the Government of a State before
the enforcement of the Constitution should be excluded from the purview
of Union taxation: if the article, as proposed by Ambedkar, was given effect
to immediately, it would only result in paralyzing the finances of his State
where for the past two decades and more the Government had followed
an active policy of industrialization and invested huge sums in various
undertakings. As a result of the financial integration, his State already stood
to lose a gcxd part of its revenues to the Union*.

Alladi Krishnaswami Ayyar intervened to allay these apprehensions; the
article was only a permissive provision and did not by any means cast a
duty on Parliament to impose taxes; and he was sure that, in the larger
interest of trade and industry. Parliament would not go to the length of
taxing those industries which had been thriving, like the industrial enterprises
of Mysore and Travancore. On the other hand, to lay down a general
principle of law that every trade or business would be exempt might lead
to wild-goose schemes being started in various Provinces. He considered
that the parovision now proposed was consistent with the most advanced
principles of democratic and federal polity*.

Finally, stressing the close identity of interests between the Centre and
the States in respect of financial objectives, the Central Finance Minister,
John Matthai, told the Assembly that if the operation of the article was ever
foimd to have the effect of causing budgetary difficulties to any State, the

’These words were later introduced in the article at the revision stage, s'«e Draft
Constitution as revised by the Drafting Committee, November 3, 1949, article 285.
Select Documents IV, I8(ii), p. 851.

«C. Defi., Vol. IX, pp. 1157-60.

Hbid., pp. 1163-5.
pp. 1167-9.

RELATIONS BETWEEN THE UNION AND THE STATES

695

Central Government would be bound to see that the necessary adjustments
were made. He also assured members that public utility undertakings would
be outside the scope of taxation under the article and there would be no
discrimination between Central and State industrial undertakings in the matter
of taxation.

In view of Matthai’s assurances several amendments were withdrawn and
article 266 was adopted*.

A new article 264-A, as revised by the Drafting Committee, came up for
consideration on October 16, 1949. Commending the article, Ambedkar
explained that some provisions of the article merely reproduced what was
already contained in other parts of the Constitution. Thus, under the Sevanth
Schedule, exports and imports were to be the exclusive province of the Centre.
Similarly, freedom of inter-State trade and commerce was an accepted
proposition under Part X-A of the Constitution. Drawing particular attention
to the proviso to clause (2) whereby the existing sales tax laws of the States
had been allowed to continue in operation until March 31, 1951, even if they
contravened the prohibition in regard to inter-State transactions, he said that
the object of the proviso was to save the States from any financial difficulties
that they might otherwise be put to°.

Despite this elucidation by Ambedkar, most of those who participated
in the discussions on the provision were dissatisfied with it for one reason
or another. Several members maintained that the article was bound to
dislocate the finances of the States by taking away a large part of their
revenues from the sales tax. Representing this point of view. Shibban Lai
Saxena feared that while the various restrictions which the article sought to
impose on the power of the States to levy taxes on the sale or purchase of
goods might injure the States, they were not likely to be of much help to
the Union. He urged that subject to the overall power of the Union
Parliament to place limits on the rates of sales tax, the States should be
allowed to derive some revenue from their, products which were consumed
outside their boundaries. With these objects in view, he proposed the
omission of the words “for the purpose of consumption in that State” from
the explanation defining the place of sale, and the addition of a new
clause (4) which sought to vest the Union Parliament with power to amend
State sales tax laws with a view to uniformity, or in the interests of the
Union as a whole.

Another member, Amiyo Kumar Ghosh, took strong exception to clause (2).
providing for exemption of inter-State transactions from State taxation.
Complaining that the Constitution had concentrated all powers and all
sources of finance in the Centre, he said that if the power of imposing the
sales tax, which w^ the only elastic source of revenue left with the States,

^C. A. Deb., Vol. DC, pp. 1169-71.

Vol. X, pp. 325-7.

696

FRAMING OF INDIA’S CONSTITUTION

was to be abrogated in such a manner, then it would be better to “liquidate
the States altogether”. Otherwise, the States would be reduced to the position
(rf “orphans with a begging bowl in hand approaching the Union Government
for money and help’”.

On the other hand, Mahavir Tyagi, who was highly critical of the manner
in which the various Provinces had been using their right to levy sales taxes,
emphatically pleaded that the article should prescribe a definite ceiling rate
of sales tax— 3 1/8 per cent of the sale price according to his amendment —
which could not be exceeded by any State. Drawing attention to the
burdensome character of the prevailing sales taxes and the wide disparities
in the laws of the various Provinces, he said that if the Constitution did not
fix a limit, the States would go on taxing as before, to the detriment of the
consumers and the country. Kunzru, actuated by a similar desire to protect
the interests of the consumer, proposed an amendment which authorized
Parliament to fix the maximum rate at which a sales tax might be levied
by a State’.

Replying to the debate, Ambedkar said that he could not accept the
amendment proposed by Shibban Lai Saxena because it practically amounted
to vesting the power to levy the sales tax in Parliament. He recalled that
the proposal to make sales tax a central subject had been canvassed earlier
and had to be given up because of the opposition from the Provincial
Premiers. He personally felt that the Provinces were right in rejecting the
proposal. Under the scheme of the Draft Constitution, the Provinces would
be largely dependent for their resources upon grants from the Centre ; and
from the point of view of constitutional government it was desirable that
the States should have at least one important source of revenue. Further,
expressing his inability to accept Tyagi’s amendment, in spite of his great
sympathy for its objects, he observed that once the States were given the
power to levy the sales tax, they must be free to adjust the rate of tax to
changing situations. At the end of the discussion, the various amendments
were put to vote and negatived and article 264-A, as moved by Ambedkar,
was adopted®.

In sharp contrast with the fate of provisions of Part X, the entries relating
to taxation in the Union and the State Lists had a remarkably smooth
passage, all but two of the entries being disposed of by the Assembly, without
much discussion, on September 1 and 2, 1949*.

Subsequently, at the revision stage, the Drafting Committee renumbered
articles 249 to 254, 254-A, 255 to 262, 264, 264-A. 265. 265-A, 266, 267-A.

'C. A. Deb., Vq\. X, pp. 327-8 and 331-3. Similar views were expressed by Jagat
Narain Lai and B. M. Gupte. Ibid., pp. 334 and 336-7.

Hbid., pp. 328-31 and 335-6.

mid., pp. 339-41.

Hbid., yol. IX, pp. 832-54 and 918-25. New entry 88-A of the Union
List, relating to “taxes on the sale or purchase of newspapers; and on advertisetnents

RELATIONS BETWEEN THE UNION AND THE STATES

268 and 269 -aS' articles 268-282, 285-289 and 291-293. .The committee made
.-some, further .changes of a drafting nature in' the.; texts' of the articles as
adopted by the Assembly^

r. During .the third reading of the Draft Constitution, a' number of members
repeated the charge that the allocation of financial resources under the new
Constitution was unjust to the States. The criticism was dealt with at, length
oh .behalf of the .'Drafting Committee by T. T. 'Krishnamachari ■ who- dismissed
the charge as being wholly wrong: the Constitution had not made any
fundamental change in the scheme of financial distribution obtaining under
the 1935 Act. Moreover, if the Centre had any surpluses these could be
made over to the States by way of grants. He also stressed that the drift
of taxing power towards the Centre was a common feature in all contem-
porary constitutions since the economic well-being of a country had come
to be regarded as the ultimate and paramount responsibility of the Centre^.

Incidentally, the Bombay Premier, B. G. Kher, who had zealously espoused
the cause of the Provinces at the Premiers’ Conference, testified that the
financial provisions, of the Constitution, as adopted by the Assembly, had met
with a very generous measure of approval both in the Provinces and at the
Centred

NOTE. ON AMENDMENTS

Articles 269 and 286 : Article 286, as adopted by the Constituent Assenibly
in 1949, forbade the imposition by a State of a tax on the sale or purchase
of goods where such sale or purchase took place outside the State or in the
course of import into or export from India. The article also debarred a
State from imposing such a tax on goods in the course of inter-State trade
or commerce : and clarified in an explanation that a sale or purchase would
be deemed to have taken place in the State in which the goods were actually
delivered as a direct result of such sale or purchase for the purpose of
co,osumption. in that State,

The Constitution (Sixth Amendment) Act, 1956, made several amendments
regarding inter-State sale and purchase:

(1) ITie explanation to article 286 was omitted.

(2) Clauses (2) and (3) of the article were replaced by two new clauses
: which la.id down that

published therein”, and entry '58 and new entry- '58-A of 'the State List, dealing with
"taxes . on. the . sale or . purchase of goods other than-uiewspapers” -.and., “taxes on
advertisements other than advertisements published in newspapers” were adopted
on September 9, 1949. /Z>/c/., pp. - 1172-83, .

^Draft Constitution as revised by the Drafting Committee, Nov. 3, 1949, Ft XII,
Select Documents IV, pp. 843-54.

A, Deb,, Vol XI, pp. 616, 670-3, 770, 789, 803, 844, 897-8; and 954-6.
mid,, p. 667.

698

FRAMING OF INDIA’S CONSTITUTION

(a) Parliament might by law formulate principles for determining
when a sale or purchase took place outside the State or in the course
of export from or import into India ;

(b) any law of a State would, in so far as it imposed or authorized
the imposition of a tax on the sale or purchase of goods declared
by Parliament to be of special importance in inter-State trade or
commerce would be subject to such restrictions as Parliament might
specify.

(3) A new item 92-A was added to the Union Legislative list :

Taxes on the sale and purchase of goods other than newspapers where
such sale or purchase takes place in the course of inter-State trade
or commerce.

(4) These taxes were inserted as a new item (g) in clause (1) of article
269, so as to provide that while they would be levied and collected by
the Union, the net proceeds would be assigned to the States.

(5) A new clause was added to article 269 conferring on Parliament
power to formulate principles for determining when a sale or purchase
of goods took place in the course of inter-State trade or commerce.

Article 278 : This article, which made provision for special financial
arrangements between the Union and Part B States, was deleted by the
Constitution (Seventh Amendment) Act, 1956, as a consequence of the
abolition of Part B States as a category.

Article 280 : The Constitution (Seventh Amendment) Act, 1956, deleted
sub-clause (c) of clause (3) of article 280 which laid down as one of the
duties of the Finance Commission the question of continuance or modification
of the terms of the financial agreements entered into with Part B States.

Article 291 : The Constitution (Seventh Amendment) Act, 1956 deleted
sub-clause (2) of article 291 under which States were liable for such portion
of the privy purses of Rulers as was to be determined by the President.

Article 297 : The Constitution (Fifteenth Amendment) Act, 1963, made it
clear that lands, minerals, etc., underlying the ocean within the continental
shelf of India would vest in the Union.

Article 298 : This article was replaced by a new article specifically stating
that the executive power of the Union and of each State extended to the
carrying on of any trade or business and to the acquisition, holding and
disposal of property and the making of contracts for any purpose : with
the proviso that

(a) the executive power so conferred on the Union would, in so far as
such trade or business or purpose was not one with respect to which
Parliament had power to make laws, be subject to State legislation; and

(b) the executive power of a State would, in so far as the trade or
business or purpose was not one with respect to which the State
Legislature had power to make laws, be subject to legislation by
Parliament.

TRADE, COMMERCE AND INTERCOURSE WITHIN
THE TERRITORY OF INDIA

Under British rule, freedom of trade was the established practice in British
India, with no inter-provincial duties or other trade barriers. With the advent
of provincial autonomy in April, 1937, it was considered necessary to place
this matter on a statutory basis. Accordingly, section 297 of the Government
of India Act, 1935, prohibited Provincial Governments from imposing barriers
on trade within the country; nor could they levy any tax, cess, toll or other
due which discriminated between goods manufactured in one locality and
similar goods manufactured elsewhere. But this was far from ensuring
freedom of internal trade throughout the sub-continent. Indian States could,
and very often did, levy export and import duties at their frontiers, and
some of them derived considerable revenue from this source.

One of the early tasks to engage the attention of the Constituent Assembly
in 1947 was freedom of trade and commerce within the territories of the
Union. Its basic principles were formulated in the notes submitted to the
Sub-Committee on Fundamental Rights by K. M. Munshi, AUadi
Krishnaswami Ayyar and B. N. Rau\ The sub-committee discussed
B. N. Rau’s draft provision on the subject on March 29, 1947, and adopted
it in the following form :

Subject to regulation by the law of the Union, trade, commerce and
intercourse among the units, whether by means of internal carriage or
by ocean navigation, shall be free ;

Provided that any unit may by law impose reasonable restrictions thereon
in the interest of public order, morality or healthl

Commenting on the clause when the draft of the sub-committee’s report
was under consideration, Ailadi Krishnaswami Ayyar. suggested that (i) goods
entering a particular unit from other units of the Union should not escape
duties and taxes to which goods produced in the concerned unit itself were
subject ; (ii) it must be open to a unit in an emergency to place restrictions
on inter-State trade and commerce ; (iii) the freedom of trade guaranteed in
the clause should specifically cover coastal trade ; and (iv) it should be clearly

'Munshi’s draft, article V(l); Ailadi Krishnaswami Ayyar’s note of March 1947,
and B. N. Rau’s draft, article Select Documents II, 4(ii) pp. 68, 75.

^Draft Report, April 3, 1947, Annexure, clause 13. In his explanatory notes
appended to the Draft Report. B. N. Rau pointed out that the first paragraph of
the clause was an adaptation from section 92 of the Australian Constitution while
the proviso was new. Ibid., pp. 140, 148.

700

FRAMING OF INDIA’S CONSTITUTION

laid down that this right would not extend to non-citizens carrying on trade'.

These suggestions were accepted by the sub-committee and incorporated in
its report submitted to the Advisory Committee on April 16, 1947. The sub-
committee also recommended that some agreements would have lo be made
with Indian States to provide for a period of transition during which existing
rightsin regard- to internal customs duties would be continued, with -a- view
to their elimination within a' period to be prescribed- by the Constitution.
Such a proviso was necessary since several Indian States were dependent
OB internal customs for a ' -considerable part of Their' - revenues and any
discontinuance of, such customs would land them in serious financial
difficulties. In a note of dissent, K. T. Shah argued that the clause, as it
stood,, did not permit restrictions, being imposed by any unit on the freedom
of trade within the Union' on grounds of social reform. The decision of a
mit, for instance, tO" prohibit intoxicating drinks' or ' drugs or to stop '-immoral
traffic, -would not be covered by the proviso permitting reasonable restrictions
in 4he interests of public 'order, morality or health. He suggested, therefore,
that “social- reform” -should be '-added - expressly as ■ a ' valid gro-und for
festricting freedom of trade and commerced

' On April 21, the clause came . up for consideration before the Advisory
Committee. During -the discussions, Rajagopalachari expressed the view that
,umts .should .be given power to impose customs duties and other taxes for
genuine revenue , purposes; if this was not conceded, - the clause would wrest
from them a 'substantial means of increasing their revenues and- hamper ' the
progress'-^ of ffie '.comparatively poorer ones -amongst them. ' Alladi
.Krishnaswami' Ayyar 'and K. M. Panikkar feared, on the other hand, that
the grant of such taxing power to the Provinces or 'States might encourage
competition 'between them and thus -weaken the; federal idea and should,

' ; therefore, ' be ' preventedl - Thc' ■ committee accepted ' the provisions as
recommended by the sub-committee with one change ; the sub-clause
providing -for central regulation-Df trade by or: with ’non-citizens was dropped
as being vague and unnecessaty*.

When^^ffi^ came up for consideration in the Assembly on May 1,
two amendments' were "moved 'by Munshi.^ Tlie first sought to m-ake -the
right "of: the. units -to impose reasonable restrictions on freedc4i[i of trade and
comnierce less qualified by deleting the word “reasonable”.-: The word, in:
Munsh'f s, view, lent a -certain vagueness to the clause. The s-econd amendment
provided that the right of a unit to tax the -goods coming ' from' other units

^Ailadi Krishtiaswami Ayyar*s note on the Draft Report, April 14, 1947. Select
Documents II, 4(v), pp. 159-60.

^Report, para 6, Annexure, clause 14 and K. T. Shalfs note of dissent, para 9.
Select Documents ll, pp, 170, 173, 193.

^Advisory Committee Proceedings, April 21, 19A1, Select Documents II, 6, pp 254-7,

Tnterim Report of the Advisory Committee, April 23, 1947, para 5, Annexure,
clause 10. Select Docunientts II, 7(i), pp. 295, 297.

TRADE, COMMERCE AND INTERCOURSE WITHIN INDIA

701

would only be exercised under regulations and conditions which were non-
discriminatory. Both the amendments and the clause as amended thereby
were adopted by the Assembly without much discussion^

Taking into consideration the decisions of the Assembly, B. N. Rau
incorporated the following clause in his Draft Constitution of October, 1947 :
Subject to the provisions of any Federal law, trade, commerce and
intercourse among the units shall, if between the citizens of the Federation,
be free :

Provided that nothing in this section shall prevent any unit from imposing
on goods imported from other units any ta.x, to which similar goods
manufactured or produced in that unit are subject, so, however, as not to
discriminate between goods so imported and goods so manufactured or
produced :

Provided further that no preference shall be given by any regulation of
trade, commerce or revenue to one unit over another ;

Provided also that nothing in this section shall preclude the Federal
Parliament from imposing by Act restrictions on the freedom of trade,
commerce and intercourse among the units in the interests of public order,
morality or health or in cases of emergency^

In a subsequent note, B. N. Rau added that the words “if between the
citizens of the Federation” might create needless complications in practice.
It would be inconvenient if there were internal trade barriers across which
free trade was allowed if and only if it was between the citizens of the
Federation ; for in that case some means would have to be devised for
ascertaining the nationality of the consignor and the consignee®.

Accepting the soundness of B. N. Rau’s argument, the Drafting Committee
decided to omit these words. With some further modifications, this clause
was retained in the fundamental rights chapter in the Draft Constitution of
February 1948. The provisos were redrafted and included as independent
articles under a separate heading, namely, “Inter-State Trade and Commerce”
in Part IX of the Draft Constitution dealing with relations between the Union
and the States. Article 16 provided that subject to the provisions of article
244 and of any law made by Parliament, trade, commerce and intercourse
throughout the territory of India would be free. Article 243 provided that
no preference should be given to one State over another nor any discrimination
made between States by any law or regulation relating to trade or commerce.
Article 244 permitted a State to impose on goods imported from another
State any tax to which similar; goods manufactured in the State were subject,
so long as there was no discrimination; and also to impose reasonable
restrictions on the freedom of trade, commerce or intercourse in the public
interests. Article 245 empowered Parliament to appoint an appropriate

1C. Vol. Ill, pp. 465-8.

“Draft Constitution, Oct 1947 — clause 11. Select Documentts III, l(i), p. 9.
^Select Documents III, l(ii), p. 199.

702

FRAMING OF INDIANS CONSTITUTION

authority for the carrying out of the provisions of articles 243 and^ 244. ^'The
committee was of the opinion that it would be more appropriate to provide
for the appointment of an authority by law instead of providing for an
inter-State commission with limited powers as such a commission, if appointed
with powers only to adjudicate disputes as to trade or commerce, might
not have sufficient work to ddh

When the Draft Constitution was published and circulated for eliciting
opinion, Alladi Krishnaswami Ayyar commented that the power of imposing
reasonable restrictions on inter-State trade envisaged in draft article 244 was
so drastic in scope that it might practically nullify the freedom of trade
secured under draft article 16, for the expression “in the public interests”
was vague and uncertain and could not be the subject of judicial review.
The West Bengal Legislative Assembly also shared this view and, pointing
out that the provision was too wide, recommended limiting the power of
the States to impose restrictions on freedom of trade and commerce. The
Ministry of Industry and Supply of the Government of India, going a step
further, suggested the omission of the provision altogether. It was not
possible to foresee the circumstances in which freedom of trade, commerce
or intercourse with a State would need to be interfered with in the public
interest, imless it was on the basis of discrimination between the residents
of one State and another — something which would obviously be wholly
contrary to the spirit of the Constitution. B. N. Ran justified the retention
of the provision on the ground that it might be necessary for a State to
restrict the export of a crop in the public interest during a period of
depression resulting from destruction of crops by a flood or otherwise or
to restrict the freedom of intercourse with the inhabitants of a neighbouring
State on the outbreak of an epidemic disease like plaguel

When draft article 16 was taken up for consideration in the Assembly on
December 3, 1948, C. Subramaniam raised objections to its being adopted
as an article under fundamental rights. The unqualified subjection of the
right of freedom of trade, embodied in the article, to any law made by
Parliament and to article 244 — ^the latter empowering the States to impose
taxes and restrictions on inter-State trade — ^took away in his view its
fundamental character inasmuch as no residue of any right was left that
could not be curtailed either by Parliament or by a State Legislature. A
fundamental right was meant to take power away from the Union and State
Legislatures and not to confer power on them.

While agreeing that the article was not strictly germane to the chapter
on fundamental rights, Ambedkar pointed out that its inclusion had a histoiy

^Draft GoBstitotion, February 21, 1948, articles 16, 243, 244 and 245 and footnotes
thereon, and Seventh Schedule, List II, entry 33. Select Documents III, 6, pp. 524,
609-10, 668.

“Comments and Suggestions on the Draft Constitution. Select Documents TV,
l{i), pp. 328-31.

TRADE, COMMERCE AND INTERCOURSE WITHIN INDIA

703

going back to the serious limitations placed by the provisions of the Cabinet
Mission plan and the uncertainties of the political situation under which the
Constituent Assembly commenced its work. One of these limitations was
that the Indian States would join the Union only in respect of three subjects —
foreign affairs, defence and communications. They were not prepared to
permit the Union Parliament to extend its legislative and executive jurisdiction
beyond these three subjects and could not therefore allow trade and commerce
throughout India to be made subject to the legislative authority of the Union
Parliament. In other words, the Indian States were not prepared to allow
trade and commerce to be included as an entry in List I— the Union List —
of the Seventh Schedule. On the other hand, it was widely felt that forming
an all-India Union was without any meaning or purpose if trade and
commerce throughout the Union were not to be free. Under these
circumstances, the Drafting Committee reached the conclusion that the only
way to give effect to the desire of a large majority of the people was to
bring freedom of trade and commerce under fundamental rights. After
Ambedkar’s speech draft article 16 was adopted to be added to the
Constitution without any changed

The other provisions on the subject, namely, draft articles 243, 244 and
245, came up before the Assembly on June 12, 1949. However, their
consideration was held over on a suggestion from T. T. KrishnamacharP.
On September 8, Ambedkar moved for the deletion of these articles and
the motion was adopted by the Assembly without any opposition. The
substance of these articles was, however, embodied in another amendment
moved by Ambedkar immediately thereafter on the same day. It proposed
the insertion of a new Part in the Constitution — ^Part X-A — exclusively devoted
to “trade, commerce and intercourse within the territory of India”. Its
purpose, Ambedkar explained, was to assemble under a single part aH the
provisions on the inter-State trade and commerce scattered in different parts
of the Draft Constitution. Part X-A contained five new articles, namely,
articles 274-A, 274-B, 274-C, 274-D and 274-E. The new article 274-A
virtually repeated the content of article 16 laying down the general principle
of freedom of trade, commerce and intercourse ; article 274-B empowered
Parliament by law to impose restrictions in the public interest : article 274-C
prohibited Parliament and the State Legislatures from making any law giving
any preference to one State over another, or making any discrimination
between one State and another, except when Parliament found it nec^sary
to do so to deal with a situation arising from ihe scarcity of goods in any
part of India; article 274-D vested in the State Legislatures the power to
impose non-discriminatory taxes on goods imported from other States and
reasonable restrictions on inter-State trade, commerce and intercouise in the

iC. A. Deb., Vol. VII, pp. 798-803.
S/W4., VoL VIII, p. 819.

704

FRAMING OF INDIA’S CONSTITUTION

public interest; and article 274-E provided that Parliament might establish
an appropriate authority for carrying out the purposes of articles 274-A to
274-D. The idea of the framers was that the proposed authority might be
something like the Inter-State Commission in the United States. The article
did not mention any such authority as it was thought desirable to give
Parliament full freedom to establish such kind of authority as it might deem
fith

The new articles 274-A to 274-E encountered severe criticism from
Thakurdas Bhargava and P. S. Deshmukh. Bhargava, who moved twenty-
three amendments, wanted inter-State trade and commerce to be almost
absolutely free. Any restrictions on the freedom of inter-State trade arid
commerce — except in emergencies — ^he considered derogatory to the very
concept of that freedom. He suggested that the word ‘^restrictions” in article
274-B should be qualified by “reasonable” so as to enable the judiciary to
adjudicate on the reasonableness of the restrictions on inter-State trade and
commerce that might be imposed by Parliament in the public interest. By
another amendment he sought to replace the phrase “in the public interest”
in articles 274-B and 274-D — under which the Union and State Legislatures
could impose restrictions on the freedom of inter-State trade in the public
interest— by what he called the more comprehensive phrase “in the interests
of the general public”. The phrase “public interest” smacked of regionalism
in that in regard to a State it could at best mean the interests of the inhabitants
of that State. Such a narrow interpretation would not only hamper the
freedom of inter-State trade but also encourage the States to indulge actively
in the imposition of region-biased restrictions. P. S. Deshmukh, who was
critical of what he considered involved drafting, suggested that the eritife
question of trade and commerce, not only of the entire Union or in regard
to any particular State or States, but so far as all States and their trade
and commerce inter se was concerned, should be subject to the determination
of policy in that regard by a future Parliament.

T. T. Krishnamachari and Alladi Krishnaswami Ayyar, who replied to the
criticisms, dealt at length with the arguments advanced by Bhargava. In
regard to the suggestion that the discretion given to Parliament and the State
Legislatures to impose restrictions on the freedom of trade and commerce
should be whittled down, Krishnamachari said that it could not be done
without Tendering the future economic progress of the country well nigh
impossible. The maximum amount of liberty that could usefully be accorded
to inter-State trade and commerce had already been conceded imder the new
■article; for trade and commerce, as was being realized more and more the
world over, could not be run without some control and direction by the
Government. In this connection he referred to the experience of Australia,

^C. A Dei-., Vol. IX, pp. 1123-4.

VWd., pp. 1125-33.

TRADE, COMMERCE AND INTERCOURSE WITHIN INDIA 705

where section 92 of the Commonwealth Constitution, which guaranteed an
omnibus right of inter-State trade and commerce, had stood in the way of
many measures of economic reform undertaken by the Government. In
regard to the suggestion that the power of Parliament to impose restrictions
should be qualified by the word “reasonable” he said, such a change would
open the flood-gates of litigation over every fiscal policy of the Union
Government. Bhargava’s doubt that the phrase “public interest” was
narrower, in connotation than the phrase “interest of the general public” was
dispelled by Alladi Krishnaswami Ayyar pointing out that there was no
substance in the contention that the two phrases meant two different things.
The interest of the public and the public interest^ according to him, were
identical and conveyed the same meaning. The Assembly rejected all the
amendments and adopted the new articles 274-A to 274-E without any
modification'.

The subject of freedom of inter-State trade and commerce again came up
before the Assembly on October 13 and 16, when two more new articles,
namely, articles 274-DD and 274-DDD were proposed to be added to the
Constitution and article 16, adopted earlier, was proposed to be deleted
therefrom. The new article 274-DD sought to provide that any of the Indian
States which was levying any tax or duty on inter-State import or export of
goods might, by agreement with the Union Government, continue to do so
for a maximum period of ten years, subject to the power of the President
to terminate or modify such an agreement after a period of five years and
subject to the consideration of the report of the Finance Commission
constituted under draft article 26(T.

Article 274-DDD laid down that the new articles 274-A and 274-C, which
enunciated the general principle of freedom of trade and commerce and
prohibited the Union and the State Legislatures from discriminating between
one State and another, would not affect the provisions of any existing law
except in so far as the President might by order otherwise provide. The new
article 274-DD was consequential on the federal financial, integration
agreements with the Indian States, under which, for a period of ten years
cr less, if the President so decided after consideration of the report of the
Finance Comniission, they would, even after becoming integral parts of the
Union, continue to levy and collect certain Union taxes and duties. The
Assembly had already adopted article 258 which recognized these agreements,
and it was therefore necessary specifically to permit these States to levy and
collect inter-State customs and export duties for this transitional period.
T. T. Krishnamachari, explaining this to the Assembly, said that there were
only two States which would be levying customs duties after the
commencement of the Constitutiotf. The proposed article 274-DDD was

‘C. X Dei., Vol. IX, pp. 1138-43.

*Gorresponding provision in the Constitution i.s article 280.

•C. .4. Dei., Vol. X, pp. 342-5.

706

FRAMING OF INOIA’S CXINSTITUTION

also a consequential requirement which kept in fcrce all existing laws subject
to the Presidential power to alter it. The two articles were adopted by the
Assembly.

Proposing the deletion of article 16, Krishnamachari pointed out that the
substance of the article having been covered by article 274- A, the former
had become superfluous. The amendment met with opposition from
Thakurdas Bhargava, B. Das, Brajeshwar Prasad and Naziruddin Ahmad
who thought that the article should be retained, since it guaranteed freedom
of inter-State trade, commerce and intercourse as a fundamental right which,
unlike the right embodied in article 274-A, was justiciable on an application
for a writ under draft article 25*. Alladi Krishnaswami Ayyar replied that
the transfer of a provision in regard to freedom cf inter-State trade from
one part of the Constitution to another did not alter or affect the nature
of the right embodied in it ; the mere placing of a provision in the chapter
on fundamental rights did not carry with it any particular sanctity, nor
did its justiciability depend on such placement. Even as it stood under
article 16, the right to freedom of trade and commerce was subject to any
law made by Parliament and therefore, though the article was styled a
fundamental right, its fundamental character was completely whittled down.

Alladi Krishnaswami Ayyar also drew attention to the changed political
situation in the country and said that the integration of the Indian States
and a strong federation having materialized, there was hardly any need to
retain the freedom of inter-State trade provision in the chapter on
fundamental rights. As Ambedkar had earlier pointed cait, the provision
was included as a fundamental right only as a compromise for accommodating
the viewpoint of the Indian States. Alladi Krishnaswami Ayyar’s reasoning
appealed to the Assembly and Krishnamachari’s amendment proposing the
deletion of article 16 from the chapter on fundamental rights was ultimately
adopted*.

Subsequently, while revising the Draft Constitution as adopted by the
Assembly, the Drafting Committee reorganized the entire Part X-A and
renumbered it as Part XHI. Articles 274-A, 274-B. 274-C. 274-D, 274-DD.
274-DDD and 274-E were renumbered as articles 301 to 307. With a few
other consequential and formal modifications they assumed the form in which
they finally appeared in the Constitution adopted on November 26, 1949.

NOTE ON AMENDMENTS

1. Article 305; The Constitution (First Amendment) Act, 1951, amended
article 19(b) by making it clear that the fundamental right to practise any
profession, or carry on any occupation, trade or business, would not affect

‘Corresponding provision in the Constitution is article 32.

*C it. Vol, X, PP. 348-52.

TRADE, COMMERCE AND INTERCOURSE WITHIN INDIA

707

the operation of any existing or future law relating to the carrying on by
the State or by a corporation owned or controlled by the State of any trade,
business, industry or service “whether to the exclusion, complete or partial,
of citizens or otherwise”. The Constitution (Fourth Amendment) Act, 1955,
amended article 305 by amplifying it to provide that nothing in articles 301
and 303 would affect the operation of such laws.

2. Article 306 : The Constitution (Seventh Amendment) Act, 1956, deleted
article 306 which permitted certain Part B States (corresponding to Indian
States) to impose restrictions in certain circumstances on trade and
commerce. This was consequential on the abolition by the Act of the
category of Part B States.

THE SERVICES

India under British rule had developed, by the closing years of the
nineteenth century, a well-organized civil service, an essential feature of which
was that control over it was vested in the executive. The members of the “civil
service of the Crown in India” were governed both in the matter of their
appointment and the regulation of the conditions of their service— classification,
methods of recruitment, pay and allowances, and discipline and conduct —
by rules made by the executive. In the Government of India Act of 1919
specific provision was made enabling the Secretary of State to make rules
for regulating the classification of the civil services in India, the methods
of their recruitment, their conditions of service, pay and allowances, and
discipline and conduct. The Act also provided that such rules might, to
such extent and in respect of such matters as might be prescribed, delegate
the power of making rules to the Governor-General in Council or to a local
Government or authorize the Indian Legislature or local Legislatures to make
laws regulating the public services'. Thus the ultimate control over the
services vested in the Secretary of State in Council and, in fact, the
“Fundamental Rules” which governed all major matters relating to conditions
of service were made by him. Even the Legislatures in India derived their
power by authority delegated to them by the Secretary of State.

The 1919 Act, brought into operation after the end of the first world war,
made far-reaching inroads on the privileged position of the civil service. The
Act was based on an official declaration which favoured the increasing
Indianization of the services in all branches of the administration with a view
to the introduction, for the first time in India, of the principle of responsible
government. This first instrument of the transfer of power to popular control
was regarded by Indian leaders as extremely inadequate, limited as it was
to certain transferred departments in the sphere of provincial administration.
For the civil service, however, it was the beginning of the end of a period
cf their absolute control, not only on the administration but also on policy
and direction. These fears and anxieties were, from their own point of view,
justified by subsequent developments.

At the end of the first world war, the top echelons of the important services,
especially those working under Provincial Governments, consisted of what
were known as the “all-India services”, which governed a wide variety of
departments. There were, in the first place, the Indian Civil Service and

^Govt. of India Act, 1919, section 96-B.

tHEE SERVICSS

the Iijdian Police Service, which provided the framework of the administrative
machinery. In addition, there were the Indian Forest Service, the Indian
Educational Service, the Indian Agricultural Service, the Indian Service of
Engineers (comprising an Irrigation Branch and a Roads and Buildings
Branch), the Indian Veterinary Service, the Indian Forest Engineering Service
and the Indian Medical Service (Civil). The initial appointments and
conditions of service for aU these services were made by the Secretary of
State and each officer executed a covenant with the Secretary of State setting
out the terms under which he was to serve. In addition to the all-India
services there were the central services under the Government of India
and the provincial services in the Provinces; and lastly the subordinate
services'.

During the years following the inauguration of the 1919 Act it was decided
that, as a consequence of the decision to effect the progressive transfer of
power to Governments in India, the number of all-India services under the
direct control of the Secretary ,of State should be progressively reduced
especially in those fields of administration that were transferred to ministerial
control. It was now to be left to the Provincial Governments to reorganize
in gradual stages the higher cadres of their services in the transferred subjects,
and recruitment and control of the Secretary of State in Council were
accordingly discontinued. This policy resulted, by the early thirties, in the
Indian Civil Service, the Indian Police Service, the Ecclesiastical Service and
the civil branch of the Indian Medical Service being retained by the Secretary
of State and the rest being converted into provincial services, safeguards being
provided to secure the rights and privileges guaranteed to officers recruited
earlier to the all-India servicesl

The Government of India Act of 1935 formalized ■ this position. The
relevant provisions of that Act laid down that power to make appointments
would be vested, in respect of central services in the Governor-General, and
in the case of -provincial services in the respective Governors*. Likewise,
the power to regulate conditions of service of the members of these services
was also conferred on the Governor-General or the appropriate Provincial
Government. Provision was also made that Acts of the appropriate
Legislatures might regulate the conditions of service of persons in the civil
service. But the scope of such legislation was elaborately set out in the
Report of the Joint Select Committee of 1934. The committee made it quite
clear that the purpose of the Acts of the Legislatures would be to give
general legal sanction to the status and rights of the services. The terms
“status” and “rights”, in the opinion of the committee, covered “firstly,

Indian Statutory (Simon) Commission Report (1930), Vol. I, para 290 ff.

^ Joint Select Committee on Indian Constitutional Reform, Report, (1934), para
277.

^Sec. 241 ff.

‘Sec. 241.

710

FRAMING OF INDIA’S CONSTITUTION

protection against individual injury amounting to breach of contract and
against individual unfair treatment through disciplinary action or refusal of
promotion : and secondly, protectio-n against such arbitrary alterations in
the organization of the services themselves as might damage the professional
prospects of their members generally”. The committee said :

. . these Provincial Civil Service Acts could not indeed determine in
detail the rates of pay, allowances and pensions, and the conditions of
retirement, of all civil servants, nor the procedure to be followed in
considering their promotion on the one hand, or, on the other, their
dismissal, removal, reduction or formal censure. Such Acts could however
confer general powers and duties for these purposes on the Government,
and in regard to promotions, they could provide definitely that canvassing
for promotion or appointments shair disqualify the candidate, and that
orders of posting or promotion in the higher grades shall require the
personal concurrence of the Governor. On the second point, it is
admittedly more difficult to give security to the Services as a whole in
respect of their general organization ; yet the morale of any service must
largely depend upon reasonable prospects of promotion, and this must
mean that there is a recognized cadre of higher paid posts which, while
naturally subject to modification in changing circumstances, will not be
subject to violent and arbitrary disturbance. A legislature does nothing
derogatory to its own rights and powers if it confers by law upon the
executive the duty of fixing such cadres and of reporting to the legislature,
if any post in these cadres is at any time held in abeyance'.

Safeguards were included in the Act laying down the procedures to be
followed for dismissal, removal or reduction in rank of civil servants, and
as a further safeguard a special responsibility was conferred on the Governor-
General and the Governors for the protection of the legitimate interests of
the servicesl Power was also specffically vested in them to deal with the
cases of individual Government servants in such manner as they considered
just and equitable even if this departed from the rules or Acts applicable —
so long as the case of the officer was dealt with in a manner more Eberal
than that provided by the rules.

Future recruitment by the Secretary of State was to be made to the Indian
Civil Service, the Indian Police, and the civil branch of the Indian Medical
Service. For the Secretary of State’s officers detailed safeguards were
provided. Their salary, remuneration and rights in regard to medical
attendance were to be decided exclusively by the Secretary of State. The
number and character of the posts to be held by them were to be decided
by the Secretary of State through rules prescribing detailed provisions
specifying the individual posts under the Centre and in the States to which

^Joint Select Committee on Indian Constitutional Reform, Report {W A), para 293,

^Government of India Act, 1935, sections 12 and 53.

THE SERVICES

7II

the Secretary of State’s officers alone were to be appointed. A suitable
provision was also laid down for safeguarding their rights in disciplinary
matters'.

This, in brief, was the background against which the Constituent Assembly
considered the question of the public services.

In the earlier discussions on the principles of the Constitution not much
consideration was given to the provisions to be made in regard to the services.
One point was, however, emphasized. The Union Constitution Committee
included a specific recommendation that there should be All-India Services
whose recruitment and conditions of service would be regulated by federal
law. As a direct consequence of independence and partition, India had
suffered a heavy depletion in the higher ranks of the services, especially in
the cadres of the Indian Civil Service and the Indian Police. A considerable
number of the members of these two services were Europeans and, with few
exceptions, all of them chose to retire. A number of officers opted to serve
the Dominion of Pakistan. The result, coupled with the fact that recruitment
to these services had also been considerably slowed down during the war
years, was a serious, almost critical void in these services. The new All-
India Services were created to fill this void. The intention was that these
All-India Services, like the Secretary of State’s Services in the past, should
primarily man superior posts in the various Provinces as well as under the
Central Government: that they would be organized into separate provincial
cadres : and that each Province would send a quota to the Centre on
deputation to man senior posts, this quota being provided for in the strength
of the provincial cadre. It will be readily seen that this conception of an
All-India Service constituted a substantial inroad into the sphere of provincial
autonomy ; and N. Gopalaswami Ayyangar therefore found it necessary to
enter a special plea justifying it. He explained that steps had been taken
for the purpose cf ascertaining the wishes of Provincial Ministries as regards
the desirability of establishing an All-India Administrative Service. The
recommendation of the Union Constitution Committee attempted to translate
the executive action which had been taken into something which would have
the authority of law in the future :

A question will arise whether this is in conflict with provincial autonomy,
whether it is not the proper thing for you to leave the whole thing in
the hands of Provincial Ministers. All that I can say at the present moment
is that those responsible Ministers who are in charge of Provincial
administrations have felt the need already for recruitment on an all-India
basis and it will be only the part of wisdom to make provision for such an
arrangement in the new Constitution also.

On general grounds, Gopalaswami Ayyangar was of the opinion that the
establishment of All-India Services would be desirable in cases where it was

'^Government of India Act, 1935, sec. 246 ff.

712

FRAMING OF INDIANS CONStiTUflON

necessary to attract to the highest services the best material available in
the country, transgressing provincial boundaries for the purpose of attracting
this materiaP.

The proposal of the Union Constitution Committee was adopted without
any further discussion.

B. N. Rau, the Constitutional Adviser, made complete provision in his
first Draft for regulating recruitment and conditions of service of members
of the various public services’'. This Draft followed the provisions of the
Government of India Act of 1935 but adapted them to the circumstances of
a Government working in complete responsibility to a Legislature. The
provisions were in two chapters, one dealing with the defence services and
the other with the civil services. The draft articles dealing with the defence
services^ provided that all appointments connected with defence and the grant
of -commissions in any naval, military or air force within the territory of
the Federation should be regulated by or under an Act of Parliament
and, until such provision was made, by' rules made by the President.
They also provided that the conditions of service of persons belonging
to the various services or employed in posts connected with defence
within the territories of the Federation would be regulated by or under
federal law.

The chapter on civil services contained three clauses. The first enabled
the President by order to create such All-India Services as he might consider
necessary. It also laid down that the recruitment and conditions of service
of persons appointed to these services would be regulated by or under Acts
of the Federal Parliament and, till such Acts were passed, by rules made
by the President. The second clause dealt with recruitment to, and conditions
of service of, the other civil services. Following the Government of India
Act, 1935, it provided &at recruitment would be an executive responsibility
and accordingly laid down that all appointments were to be made, in the
case of the federal services and posts, by the President or by such person
as he might direct ; and in the case of provincial services, by the Governor
or such person as he might direct. Likewise, the conditions of service were
to be regulated by rules made, in the case of federal services and posts,
by the President or by any person authorized by him and in the case of
provincial services by the Governor or any person whom he might authorize.
The Draft contained a proviso which laid dcwn that rules need not be made
for persons engaged in a purely temporary capacity. There was also a provision
empowering the appropriate Legislatures to make laws regulating conditions
of service (but not recruitment). Such laws could supersede the rules made
by the President or Governor. There was also a clause continuing in force
existing rules.

Vol. IV, p.965.

^Select Documents III, l(i), clauses 215-8, pp. 89-90.

Hbid; clauses 215 and 216.

THE SERVICES

The Drafting Committee considered these .provisions in January and
February 1948 and decided to omit the portion relating to the defence services
and simplify the provisions relating to the civil services. Hie committee
was of the opinion that detailed provisions with regard to the recruitment
and conditions of service of persons in defence services or those serving
the Union or a State in a civil capacity should not be included in the
Constitution, but should be left to be regulated by Acts of the appropriate
Legislature. The Draft Constitution as settled by the Drafting Committee
contained three articles :

281. In this Part, unless the context otherwise requires, the expression
“State” means a State for the time being specified in Part I of the First
Scheduie.

282. (1) Subject to the provisions of clause (2) of this article, Acts of the
appropriate Legislature may regulate the recruitment and the conditions
of service of persons appointed to public services and to posts in connection
with the affairs of the Union or any State.

(2) No person who is a member of any civil service or holds any civil
post in connection with the affairs of the Government of India or the
Government of a State shall be dismissed, removed or reduced in rank
until he has been given a reasonable opportunity of showing cause against
the action proposed to be taken in regard to him :

Provided that this clause shall not apply —

(a) where a person is dismissed, removed, or reduced in rank on the
ground of conduct which has led to his conviction on a criminal charge ;

■ or

(b) where aft authority empowered to dismiss a person or remove him
or reduce him in rank is satisfied that for some reason to be recorded
by that authority in writing, it is not reasonably practicable to give that
person an opportunity of showing cause.

283. Until other provision is made in this behalf under this Constitution,
any rules which were in force immediately before the commencement of
this Constitution and were applicable to any public service or any post
which has continued to exist after the commencement of this Constitution
as a service or post under the Union or a State shall continue in force
so far as consistent with the provisions of this Constitution^

These draft articles sought in the first place to establish the basic position
that both recruitment and conditions of service should not be within the
executive jurisdiction of the Government, but should be made expressly
subject to legislative control and the rules in force immediately before the
commencement of the Constitution were kept alive only for an interim period
until the Legislatures passed the necessary laws. They also protected civil
servants from arbitrary dismissal, removal or reduction/ These major

III, 6, articles 281-3, pp. 625-6,

714

FRAMING OF INDIA’S CONSTITUTION

penalties could not be imposed except after they were given a reasonable
opportunity of showing cause against the action propo-sed to be taken ; this
requirement': could be waived in two circumstances ; where disinksal, removal
or, reduction in rank was ordered on the ground of conduct which ; led ^ tp
conviction on a criminal charge, and where it was not practicable to give
a Government servant this opportunity. All the other provisions contamed.
in Rau’s draft were omitted. The Drafting ■ Committee’s reason'

for this simplified provision was that it should be left to the Legislatures
to regulate all matters relating to the services. This was made
clear in Ambedkar’s forwarding letter to the President of the Constituent
Assembly:

The committee has refrained from inserting in the Constitution any
detailed provisions relating to the services ; the committee considers that
they should be regulated by Acts of the appropriate Legislature rather
than by constitutional provisions, as the committee feels that the future
Legislatures in this country, as in other countries, may be trusty to deal
fairly with the services'.

In other words, the Drafting Committee, at this stage, laid the whole
responsibility for safeguarding the rights of all members of the services on
legislative action taken by the appropriate Legislatures in pursuance of the
relevant entries in the legislative lists. The entries in the Union List regarding
the armed forces of India, according to this reasoning, gave Parliament all
the necessary powers to make provision for the grant of commissions in the
army, navy and air forces, for the making of other appointments and for
regulating the conditions of service of members of these forces. Similarly
the entries relating to All-India Services and Union Services would confer
on Parliament power to regulate recruitment and conditions of service of
the members of these services, while the corresponding entry in the State
List would give similar powers to the State Legislatures.

When the Draft Constitution as settled by the Drafting Committee was
circulated, comments of substance were received frcm the Ministry of Home
Affairs and from the judges of the Federal Court and Chief Justices of the
High Courts. In a memorandum sent by the judges of the Federal Court
and the Chief Justices of the High Courts, anxiety was expressed in favour of
ipeoific provision being made in the Constitutkn to safeguard the integrity
and independence of members of the subordinate judiciary. The memorandum
emphasized that it should be placed beyond doubt that the powers of
appointment, posting and promotion cf members of the judiciary should
be in the hands not of the Governments but of the High Courts which
possessed the requisite infomiation about the merits of the

members of the judicial services. The High Courts of Calcutta and Nagpur
also emphasized this point The Draf^^^ agreeing with these

^Selgct Documents III, 6, articles 281-3, p, 516.

THE SERVICES

715

comments, decided that, to secure this object, a new chapter relating to
district judges ^ and the subordinate judicial service should be included in the
chapter in the Constitution relating to the judiciaryh
The Ministry of Home Affairs had several material points to urge. These
were contained in a letter* sent to the Constituent Assembly by the Ministry
on October 15, 1948, along with which the proposals of the Ministry on
services were forwarded, together with draft clauses embodying these
proposals. In the first place, the Home Ministry was very emphatic that
provision in specific terms should be included in the Constitution for the
setting up of the Indian Administrative Service and the Indian Police Service
as all-India services. The case for such a provision was framed in the
following words by Deputy Prime Minister Vailabhbbai Patel:

in consultation with, and with the unanimous support of, Provincial
Governments, we have evolved two new services to take the place of the
Indian Civil Service and the Indian Police viz^, the Indian Administrative
Service and the Indian Police Service. We have made recruitment, have
issued rules of recruitment, discipline, control etc., and have entered into
agreements with candidates for these services... I need hardly emphasize
that an efficient, disciplined and contented service assured of its
prospects as a result of diligent and honest work, is a sine qua non of
sound administration under a democratic regime even more than under
an authoritarian rule. The service must be above party and we should
ensure that political considerations, either in its recruitment or in its
discipline and control, are reduced to the minimum, if not eliminated
altogether. . . In an all-India service, it is obvious, recruitment, discipline
and control, etc. have to be tackled on a basis of uniformity and under the
direction of the Central Government which is the recruiting agency. . . You
will recall that all these matters have been settled at a conference of Prime
Ministers convened in 1946 and the details have been settled by
correspondence with Provincial Governments. No criticism, therefore, can
be made that either in the formation of these services or in the preparation
of necessary rules and regulations provincial susceptibilities and views
find no place. Indeed, there was a remarkable unanimity between the
views of the Provincial Governments and those of the Central Government
throughout on these questions. Any pricking of the conscience on the
score of provincial autonomy or on the need for sustaining the prestige
and powers of Provincial Ministers is therefore out of place. 1 am
also convinced.. , that it would be a grave mistake to leave these matters
to be regulated cither by central or provincial legislation. Constitutional
guarantees and safeguards are the best medium of providing for these
services and are likely to prove more lasting*.

^Select Documents, IV, l(i), pp. U&l. See also chapter on the Judiciary.

"/h/d., pp, 333-5.

^Letter dated April 27, 1948, to the Prime Minister, Ibid,, pp. 332-3.

716

FMMING OF -INDIANS CONSTiTUtlON

The second major point made by the Home Ministry related to guarantees
to be given to members of the former Secretary of State’s Services and the
newly-created All-India Services. The Ministry of Home Affairs pointed out
that during; the negotiations which preceded the transfer of power, the
position of the services after the termination of the control of the Secretary
of State was considered ; and it was agreed both by the British Government
and by the Government of India that the subsisting service rights of all
members of these services, whether Indian or European, should be guaranteed
by the new Governments if the officers were willing to continue in service
and were retained in service by the new Governments. Eventually, as a
result of discussion, it was agreed that a scale of compensation decided
upon by the British Government should be paid to those European members
of the All-India Services who wished to retire prematurely of their own
accord, or whom the new Governments did not wish to keep. The option
to retire prematurely and the entitlement to compensation were given only
to the British members of these services. Indian officers were ordinarily
expected to continue in service under the new Government, but they were
given a joint guarantee by the Central as well as the Provincial Governments
that their subsisting service rights would be safeguarded. The new
Governments also retained the right to retire any individual officer even if
he was willing to serve ; to these officers compensation would be paid on 'the
same scale as was admissible to British officers.

On June 18, 1947, individual letters were issued to all officers by the
Government of India, in which an undertaking was given that for those
officers who continued in service their pay, pension and rights in respect of
disciplinary proceedings would be fully safeguarded. All but two of the
Provincial Governments had favoured specific statutory guarantees for these
officers and steps had been taken to secure the execution of agreements
between the individual officers on the one hand and the Provincial Governments
concerned and the Central Government on the ether. Having regard to these
commitments, the Home Ministry pointed out that the Government of India
was in honour bound committed to include the necessary safeguards in the
Constitution itself. Any failure on the part cf the Constituent Assembly
to insert a provision to this effect was bound to be regarded as reflecting
unwillingness to endorse these commitments solemnly given to the officers.
It will thereby create doubts and apprehensions which, it is essential in
the public interest, should not be created. On the other hand, the making
of a specific provision would foster stability and an independent outlook
which are essential for the efficiency and effectiveness of the services.

The Home Ministry was of the c^pinion that these guarantees should be
incorporated in the Constitution, not only for members of the former Secre-
tary of State’s Services but also for the members of the Indian
Administrative Service and the Indian Police Service, the two new All-India
Services constituted as successor services to the Indian Civil Service and the

THE SERVICES

717

Indian Police. Dealing with this matter, the Deputy Prime 'Minister,
Vallabhbhai Patel, observed:

We are bound in honour to carry out the undertaking and the only way
that undertaking can be fully and satisfactorily discharged is by making
provision in the Constitution.

Accordingiy the Ministry suggested the inclusion of a clause to the effect
that every person who wasi a member of a Secretary of Statens Service
(formerly known as an- all-India service) or the new Indian Administrative
Service or the Indian Police Service should be entitled to the same conditions
of service as respects remuneration, leave and pension and the same rights
as respects disciplinary measures and tenure of office (or rights as similar
thereto as the changed circumstances would permit) as he was entitled to
before the commencement of the Constitution.

The safeguards already included in respect of protection from arbitrary
action against dismissal, removal or reduction in rank were also retained
in the draft clauses which the Home Ministry sent for the consideration of
the Constituent Assembly.

These suggestions were considered by the Constitutional Adviser who
recommended their acceptance with some amendments. An important
amendment he suggested was that Acts of the appropriate Legislature might
regulate the recruitment and conditions of service of all public services and
posts and not only the civil services as suggested by the Ministry'. The
Constitutional Adviser also referred to the criticism that the draft clauses
left a hiatus in that until such Acts were passed, there would remain no
power to amend any of the existing laws or rules; and to cure this defect he
suggested a proviso enabling the President and the Governors to make rules
until suitable provision was made by Acts of the appropriate Legislature®.

At a subsequent stage the Drafting Committee prepared a draft amendment
which provided that the clause that a civil servant would hold office during
the pleasure of the President should be expanded so as to cover ‘‘every
person who is a member of a defence service or of a civil service of the Union
or of an all-India service or holds any post connected with defence cc any
civil post under the Union”. At the instance of the Ministry of Home Affairs,
this matter was referred to the Defence Ministry for opinion on this clause ;
the views of the Ministry were also sought on the question whether the
safeguards laying down the procedure to be followed in respect of dismissals,
removals, and reduction in rank should also be made applicable to members
of the defence services. The views of the Ministry of Defence were :

We consider that the defence services cannot and should not be brought

^Comments and Suggestions on the Draft Constitution, Select Documents IV,
l(i), pp. 333-43.

^ibid. At the final stage, when it was clear that the designation of the Heads of
Part B States would be “Rajpramukh” the words “or Rajpramukh” were added
after “Governor”. See art. 309 of the Constitution as passed.

FRAMING OF INDIANS CONSTITOTION

within the scope of article 282- AA, the main provision of which is that
00 one should be dismissed or removed from service by an authority
subordinate to the officer by whom he has been appointed. For
disciplinary reasons it is essential in the Armed Forces to delegate powers
to subordinate authorities to dismiss individuals even though they may
have been appointed by higher authorities. For example, the Junior
Commissioned Officers at present hold commissions from the Governor-
General and will presumably hold commissions from the President under
the new Constitution : but under the Army Act, they can be dismissed by
subordinate officers for specified offences. Unlike the civil services, the
Armed Forces have a complete disciplinary code which safeguards their
rights and privileges consistent with military discipline and it would, we
feel, be inadvisable to make provision on any of these matters in the
Constitution Act itself. While in the case of the civil services it is of the
utmost importance to provide for a safeguard for Government servants
against wrongful dismissal etc,, in the military forces the paramount need is
to ensure military discipline. The draft of article 282- A A proposed by the
Hon’ble Dr. Ambedkar, therefore, correctly covers only the civil services.
We are somewhat doubtful whether it is necessary to include any reference
to the defence services even in article 282-A though there is no doubt that,
like the civil services, the defence services also will hold office during the
pleasure of the President. Presumably this would not stand in the way
of any legislation providing for termination of service by a subordinate
authority without the formal approval of the President. If so, we have
no objection to the draft as it is : but if there is any doubt on this point,
we feel that the reference to the defence services might be omitted. It
might also be considered whether it would look appropriate to refer to
the defence services in article 282-A when they are specifically excluded
from the next article, f.^., article 282-AA. The reason for this apparent
disparity may not be clear\

The views were apparently accepted by the Drafting Committee.

The amendments made in the Draft Constitution in the light of these
discussion were considered by the Assembly on September 7 and 8, 1949. As
against three articles introduced in February 1948, the Drafting Committee
now proposed the adoption of six articles providing for a variety of matters.
In the first place there was a material change in the extent of application. In
the original draft article 281 it was proposed that the provisions would
apply only to the ‘‘Part I States” corresponding to the Provinces. By this
time it had been decided that the Indian States would also be governed by
the Constitution : Part III States were therefore added to the article. The
article as so amended was adopted without any discussion^

^Comments and Suggestions on the Draft Constitution, Select Documents W, l(i),
pp. 579-80.

Vol. IX,;p. j082; ■

THE SERVICES

The next article 282 was replaced by four articles. The first of these
enunciated the principle that recruitments and conditions of service should
be regulated by Acts passed ' by the appropriate Legislature: but aS' a
transitional provision, empowered the executive (the President, the Governor
and in the case of Indian States' the Ruler) to make rules until Acts-' were
passed. (A subsequent amendment made at the revision stage permitted
the delegation of this rule-making power to subordinate authorities.) The
second laid down that every person who was a member, of a defence service
or a civil service of the Union or held any post connected with defence or
any civil post would hold office during the pleasure of the President, and
similarly every civil servant in a State would hold office during the pleasure
of the Governor or Ruler. It also contained a proviso of a forma! nature
enabling the payment of compensation to persons engaged on contract who
had to be sent away before the “agreed period’’ for reasons not connected
with misconduct. The third article, 282-B, provided safeguards against
arbitrary action in the matter of dismissal, removal or reduction. This
applied only to civil servants and it contained, in addition to the provisions
already included, a clause that no one could be dismissed by an authority
subordinate to that by which he was appointed : and further, it also
empowered the President, or Governor or Ruler, to dispense with a “show
cause” notice where he was satisfied that in the interest of the security
of the State, it was not expedient to do so. The last of these four articles —
282-C — enabled Parliament by law to create an All-India Service if the
Council of States decided by a two-thirds majority that it was expedient in
the national interest to do so : the article added that the two services already
created — the Indian Administrative Service and the Indian Police Service—
would be treated as All-India Services created by Pailiament under the
articlek

The question of safeguards to be provided in the Constitution for officers
appointed by the Secretary of State under the previous regime was still a
controversdal subject and was not dealt with at this stage.

There was considerable discussion on some of these articles, especially on
article 282-B which laid down the procedure for imposing on civil servants
the penalties of dismissal, removal or reduction in rank, and required that
before any one of these penalties was imposed, a reasonable opportunity should
be given to a civil servant to show cause against such action. Several members
were particularly concerned with the proviso which laid down that such
opportunity need not be given if the penalty was being imposed on the ground
of conduct which led to conviction on a criminal chargek They feared that
civil servants might be dismissed on conviction by criminal courts for trivial
offences, like failure to get vaccinated. Another criticism was that the article

VoL

pp. IIOQ Q, See Jaspat Rai Kapoor, Thakurdas Bhargava and others.

720

FRAMING OF INDIA’S CONSTITUTION

might be utilized to short-circuit the Public Service Commissions^ On both
these points Ambedkar had satisfactory answers. He pointed out that it
was for Parliament (or the appropriate Legislature) to lay down what cases
would constitute a ground for dismissal : the article did not affect the power
of the Legislature to exempt punishment fee offences of a political character
or offences which did not involve moral turpitude. Ambedkar also went
on to assure the Assembly that, even in cases where the Government had
not given an officer the opportunity to show cause, the officer would have
the right to go to the Public Service Commission and to file an appeal that
he had been wrongly dismissed^

The only criticism on article 282-C, which provided for the setting up of
All-India Services, was that the decision to establish such services should
be left with Parliament as a whole rather than the Council of States.
Ambedkar, however, pointed out that the article was to some extent an
invasion of the autonomy given to States to recruit their own services :
obviously the only method of providing for authority to the Centre to take
away the autonomy of the States was to secure the consent of two-thirds of
the members of the Council of States which was set up as a body primarily
to voice the opinion of the States and be the custodian of State interests. The
Council ex hypoihesi represented the States and its resolution would be
tantamount to an authority given by the States^

In the light of these explanations the Assembly adopted all the articles
as suggested by the Drafting Committee.

The provision for the protection of All-India Service officers evoked
considerable controversy. The article as worded by the Drafting Committee
in October 1948 conferred on all members of the All-India Services (the
Secretary of State’s Services, as weU as officers appointed to the Indian
Administrative Service and the Indian Police Service by the new Governments
before the commencement of the Constitution),

the same conditions of service as respects remuneration, leave and pension,
and the same rights as respects disciplinary matters or rights as similar
thereto as changed circumstances may permit as that person was entitled
to immediately before such commencement.

This was, however, not moved along with the other amendments on
September 7 and 8, 1949. The article was eventually amended by the
committee on October 9 so as to restrict its scope to the Secretary of State’s
Services only (article 283-A). This amendment was circulated on that date
and moved on October 10 by K. M. Munshi. There was much criticism of
the safeguards proposed and there was also bitter comment on the privileged
position of these officers. Ananthasayanam Ayyangar, while not opposing

A, BeK Vol IX, pp. 1099-100.

%/d., pp. 1113-4.
mid,, p. 1118.

A Select Documents lY, l(i), p. 342,

THE SERVICES

721

the article, was particularly severe on the proposed ' protection. He

characterized this guarantee as extraordinary and said:

This guarantee means that' they were the rulers under the old regime
and that they will continue to be so in this regime. This guarantee asks
us to forget that these persons who are still in service — 400 of them —
committed excesses thinking that this was not their country.

According to him these officers were being ‘"pami^red”. Some, of them
had not changed their manners and did not feel that they were part and
parcel of the country. Nevertheless he appealed to the Assembly to support
the article,

. . , it serves no useful purpose to enter into recriminations against
ourselves when our own responsible leaders, who have spent their lives in
the cause of winning freedom, have given this assurance. Let it not be said
that we intervened in this matter, and went back on this assurance. If I
support this clause it is in that spirit that I am supporting it. It is not
in the spirit that all these people served our country for freedom in our
time\

Vallabhbhai Patel who defended the article vigorously was severe on
the critics. He gave a resume of the history of the safeguards provided
for the Secretary of State’s officers, and explained that on behalf of the
new Government, these guarantees had been pledged and included in the
Indian Independence Act :

When the Indian Independence Act was to be passed in Parliament the
draft was sent here. The leaders of the nation were called for ; the
Cabinet was there, the Congress President was there, your President was
there and your Leader today was there. Mahatma Gandhi was also
present. Every section was scrutinized and the draft was approved. After
that it was passed in Parliament. Now, these guarantees were circulated
before that to the Provinces, All Provinces agreed. It was also agreed
to incorporate these into the Constituent Assembly’s new Constitution.
That is one part of the guarantee. Have you read that history ? Or,
you do not care for the recent history after you began to make history. If
you do that, then I tell you we have a dark future. Learn to stand upon
your pledged word, and, also, as a man of experience I tell you, do not
quarrel with the instruments with which you want to work. It is a bad
workman who quarrels with his instruments. Take work from them.
Every man wants some sort of encouragement. Nobody wants to put in
work when every day he is criticized and ridiculed in public. Nobody
will give you work like that. So, once and for ail decide whether you
want this service or not. If you have done with it and decide not to have
this service at ail, even in spite of my pledged word, I will take the
Services with me and go.

A. Deb., VoL X, pp. 42 ff. \

722

FRAMING OF INDIA’S CONSTITUTION

■ He took , the 0 for a word of appreciation for the civil ; servant.

He said :

Today, my Secretary can write a note opposed to my views. I have given
that freedom to all my Secretaries. I have told them, “If you do not
give your honest opinion for fear that it will displease your Minister,
please then you had better go. I will bring another Secretary.” I wiE never
be displeased over a frank expression of opinion. That is what the Britishers
were doing with ' the Britishers. We are now sharing the responsibility.
You have agreed to share responsibility. Many of them with whom I
have worked, I have no hesitation in saying that they are as patriotic, as
loyal and as sincere as myself. Those who think that the leaders were
mistaken in giving these guarantees, they do not know their mind. They
do not know what would have happened. They do not even now know.
Yet we have difficult times ahead. We are talking here under security kept
in very difficult circumstances. These people are the instruments. Remove
them and I see nothing but a picture of chaos all over the country* I
have difficulty because we have paucity of men. Provinces also suffer and
they ask for more men. We have appointed a Special Commission to
recruit about three hundred to four hundred men. They have just been
selected. They are not selected from the I.C.S. cadre. They have no
experience. But yet we want instruments. They will learn from these
people.

Now, what is it that you want to do ? You decide. My advice to you is,
all Members of the Parliament should support the Services, except where
any individual member of the Service may be misbehaving or erring in his
duty or committing a dereliction of his duties. Then bring it to my notice.
I will spare nobody, whoever he is. But if these service people are giving
you full value of their services and more, then try to learn to appreciate
them. Forget the past. We fought the Britishers for so many years. I was
their bitterest enemy and they regarded me as such but I am very frank and
they consider me to be their sincere friend. What did Gandhiji teach us ?
You are talking of Gandhian ideology and Gandhian philosophy and
Gandhian way of administration. Very good. But you come out of the
jail and then say: “These men put me in jail Let me take revenge”.
That is not the Gandhian way. It is going far away from that.

Therefore, for God’s sake, let us understand where we are. Today, if you
want to take anything from the Service, you touch their heart but do not
take a lathi and say, “who is to give you guarantee ? We are a Supreme
Parliament”. You have supremacy for this kind of thing ? To go behind
your words ? That supremacy will go down in a few days if you do that.
That is my appeal to you and sincere appeal to you. You remember that
and carry that to the Provinces also and to the Congressmen also who are
working outside. That is the way of administration. Otherwise, it will
go down. And when the country is stabilized and when it is strong enough,

THE SERVICES

723

then if you want to make any change, it would not be difficult for the
service people to be persuadedh

All the amendments were thereafter negatived and the article adopted.

At the revision stage the articles on the services were renumbered articles
308-314.

NOTE ON AMENDMENTS

Article 311 : The Constitution (Fifteenth Amendment) Act, 1963, made an
amendment to the procedure prescribed by clauses (2) and (3) of article 311.
The clauses were elaborated as follows :

(2) No such person as aforesaid shall be dismissed or removed or reduced
in rank except after an inquiry in which he has been informed of the charges
against him and given a reasonable opportunity of being heard in respect of
those charges and where it is proposed, after such inquiry, to impose on
him any such penalty, until he has been given a reasonable opportunity
of making representation on the penalty proposed, but only on the basis
of the evidence adduced during such inquiry :

Provided that this clause shall not apply —

(a) where a person is dismissed or removed or reduced in rank on the
ground of conduct which has led to his conviction on a criminal charge ;
or

(b) where the authority empowered to dismiss or remove a person or
to reduce him in rank is satisfied that for some reason, to be recorded
by that authority in writing, it is not reasonably practicable to hold such
inquiry ; or

(c) w'here the President or the Governor, as the case may be, is satisfied
that in the interest of the security of the State it is not expedient to hold
such inquiry.

(3) If, in respect of any such person as aforesaid, a question arises whether
it is reasonably practicable to hold such inquiry as is referred to in clause
(2) the decision thereon of the authority empowered to dismiss or remove
such person or to reduce him in rank shall be final.

A. DeL, VoL X pp. 48-52,

PUBLIC SERVICE COMMISSIONS

The proposal for the establishment of a Public Service Commission in
India was first formidated in a memorandum presented by the Government
of India to the Committee on the Division of Functions in connection with
the constitutional changes arising out of the Montagu-Chelmsford Reforms
after the first world war\ Under these reforms, with a partial transfer of
responsibility to Ministers in the Provinces, it was considered necessary
to protect the services, whether all-India or provincial, from political
influences. Provision was accordingly made in the Government of India
Act of 1919 for the establishment of a Public Service Commission in India
consisting of not more than five members to be appointed by the Secretary
of State in CounciP. The qualifications for appointment, pay, pensions and
other conditions of service were to be prescribed by rules made by the
Secretary of State in Council, as also the functions to be discharged by the
Commission in regard to the recruitment and control of public services in
India. No provision was made for separate Provincial Public Service
Commissions : it was left to the Central Commission to serve the needs both
of the Central and the Provincial Government’.

No such Commission was, however, set up after the passing of the Act,
even though the provision itself was mandatory. Discussions took place
for some time about its establishment; but the functions proposed were at
that time practically restricted to recruitment for the services in India ; and
with the ftovincial Governments generally resisting suggestions to extend
the Commission’s powers to cover recruitment to provincial services, there
seemed to be few useful duties for this body to perform ; arid the proposal
was eventually dropped.

The establishment of a Public Service Commission was revived by the
Lee Commission (the Royal Commission on Superior Services in India, 1924)
which suggested a considerable extension of its powers beyond recruitment-
in earlier discussions its most prominent feature. The Lee Commission
recommended a Public Service Commission, composed of men of the highest
public standing, free from all political association and with the status and
emoluments of High Court judges to undertake recruitment functions as well
as duties of a quasi-judicial character in connection with the discipline,

^Memoranda submitted to the Indian Statutory Commission by the Government
o/ /«dM, mo, Vol. V, p. 1324.

^Government of India Act, 1919, Section 96-C.

’See Memoranda, fji. 1.

PUBLIC SERVICE COMMISSIONS

725

control and protection of the services. The Commission observed:

Wherever democratic institutions exist, experience has shown that to secure
an eflBcient civil service it is essential to protect it as far as possible from
political or personal influences and give it that position of stability and
security which is vital to its successful working as the impartial and efficient
instrument by which governments, of whatever political complexion, may
give eSect to their policies. In countries where this principle has been
neglected, and where the “spoils system” has taken its place, an inefficient
and disorganized civil service has been the inevitable result and corruption
has been rampant*.

As a result of these recommendations a Public Service Commission was
set up under the Central Government in India in 1926, with advisory
functions confined primarily to the All-India Services and Class I Central
Services, its scope covering recruitment, disciplinary appeals, memorials and
representations about grievances, claims for compensation and general
questions of conditions of servicel Recruitment outside India, which continued
to furnish a majority of the recruits to the Indian Civil Service and the Indian
Police Service, was outside the purview of the Commission ; and, so far as
provincial services were concerned, provision was made to enable the
Commission to perform such functions as the Provincial Government or
the Governor might invite it to imdertake. But hardly ever was its
assistance so invoked by a Province. In fact, the tendency in the
Provinces was in favour of establishing separate Commissions. Madras
(in 1930) was the first and until 1937 the only Province to have a
Commission of its own because, according to the Government of India,
“appointments to the services have been one of the primary political
interests” in that Province*.

Opinion expressed before the Simon Commission and at the Round Table
Conferences in London (in 1930-32) was unanimously in favour of separate
Commissions for the Provinces. The White Paper of 1933 which formed
the basis of the Government of India Act, 1935, provided for a separate
Commission for each Province as well as one for the Centre; but it also
proposed that by agreement the same Commission could jointly serve two
or more Provinces*. The Government of India Act of 1935 adopted in
the main the recommendations contained in the White Paper, later endorsed
by the Joint Select Committee in 1934. Provision was made in that Act
for a Federal Public Service Commission and a Public Service Commission
for each Province ; provision was also made so that two or more Provinces
might agree to have a joint Commission : or alternatively, they might agree
that the Provincial Commission of one of the Provinces could serve the

'^Report of the Royal Commission on Superior Services in India, 1924.

^See Memoranda, f.n.l.

•Ibid.

^Proposals for Indian Constitutional Reform, 1933 4268), para 195.

726

FRAMING Oi? INDIA’S CONSTITUTION

needs of all of them^ The Act also included provision enabling the Public
Service Commission of the Federation, with the approval of the Governor-
General, -to servo the needs of a Province if requested to do 'SO by the
Government of the Province^

The Commission was primarily to be an advisory body. Appointments
to the Commission were- taken out of the hands of the Ministers and were
to be made by the Governor-General or the Governor acting "‘in his
discretion”. At least half the membership of each Commission had to be
a “service” element, consisting of persons who had held office under the
Crown for ten years or more. The tenure of members and their conditions
of service were left to be detennined; by regulations made by the Governor-
General or a Governor acting in his discretion so as to exclude ministerial
control or even influence. The functions of the Commissions were set out
in detail and embraced practically all matteirs affecting recruitment and
conditions of service ; but the Governor-General and the Governors, acting
in their discretion, could exclude any matter from the purview of the
Commission. It is of interest to note that all services functioning in the
sphere in which the Governor-General or a Governor acted in his discretion
were so excluded. With the transfer of power in August 1947 to a
Dominion Government, all authority of the Governor-General and
Governors to act in their discretion was abrogated and these regulations
were thereafter made by the respective Governments. Government policy,
particularly at the Centre, has consistently been in favour of increasing
the status and authority of the Commission and of extending the range
of its powers.

Tlie members of the Constituent Assembly had thus before them fairlj
well-established traditions in this matter. The Union Constitution
Committee and the Provincial Constitution Committee appointed in 1947
did not find it necessary to go into this matter in any great detail; they
contented themselves with recommending that provisions regarding the
Public Service Commissions should be on the lines of those in the
Government of India Act of 19351 One difference may, however, be noticed
here : the Union Constitution Committee had recommended that the
appointment of the Chairman and members of the Federal Commission
should be made by the President on the advice of his Ministers, while the
Provincial Constitution Committee had suggested that Provincial Commissions
should be appointed by the Govem^ors acting in their discretion. Commenting
on - this point B. G. Kher, the then Premier of Bombay, suggested that
appointments' , to ' the Provincial Commission should also be made on the

^Uiider the Government of India Act, 1935, Bombay and Sind had a joint
Commission; so had the Punjab and the North-West Frontier Province, and one
Commission served the needs of Bihar, Orissa and the Central Provinces and Berar.

^Government of India Act, 1935, sec. 264 ff.

^Seiect Documents II, IS, pp. 584, 662-3,

PUBLIC SERVICE COMMISSIONS

727

advice of the Cabinet^ The Provincial Constitution Committee was not
apparently convinced of this, and tetained its recommendation that these
appointments should be made by the Governor in his discretion ; but in
presenting the report of the committee to the Constituent Assembly on July
15, 1947, Vallabhbhai Patel said that the appointment of the Chairman
and members of a Provincial Public Service Commission would generally
be made by the Governor on the advice of his Cabinet or Ministry'’.

In accordance with the reports of these two committees the Constitutional
Adviser (B. N. Rau), in his Draft Constitution of October 1947. included
provisions for Public Service Commissions which closely followed those in
the 1935 Act®. The main provisions of this Draft were that there should
be a Commission for the Federation and one for each Province. Two or
more Provinces could agree to have one Commission jointly or, in the
alternative, the Commission of one Province might by agreement serve a
group of two or more Provinces. The Federal Commission might, if so
requested by a Province, serve all or any of its needs, with the approval
of the President.

Subject to at least half the number of the members of a Commission
being persons with a minimum of ten years of Government service,
appointments to the Federal Commission were to be made by the President
and to the Provincial Commissions by the Governors. The President and
the Governors were also empowered to make regulations determining the
conditions of service of the members as also providing for the staff of the
Commissions. The Chairman of the Union Commission would be ineligible
for further Government employment after retirement; the Chairman of a
Provincial Commission would be eligible only to be appointed a member
or Chairman of the Union Commission or of another Provincial Commission.
Other members were eligible for further employment under the Government,
provided the approval of the President or the Governor, as the case might
be, was obtained. Following the recommendations of the Union and
Provincial Constitution Committees, it was provided that the President
would, in these matters, act on the advice of his Cabinet, while the Governor
was authorized to act in his discretion.

So far as the functions of the Commissions were concerned, these, too
followed the corresponding provisions of the Government of India Act, 1935,
and covered aU aspects of service administration and control. The
Commissions were required to hold examinations for appointments to the
civil services. They were also required to advise on the methods of
recruitment to civil services and civil posts; on the principles of making
appointments, promotions and transfers and the suitability of candidates for
such appointments, promotions and transfers; on disciplinary matters and

^Select Documents II, 24(ii), p. 666.

"C.yt. Dei.. Vol. IV, p. 581.

^Select Documents III, 1, clauses 219-23, pp. 90-3.

728

FRAMING OF INDIA’S CONSTITUTION

memorials oa such matters: on claims of officers for reimbursement of legal
expenses involved in proceedings arising out of acts done in the discharge
of their official duty and on claims for injury pensions. Power was given
to the President and the Governors to make regulations excluding any matter
or category of matters from the purview of the respective Commissions.
Matters relating to representation of the various communities in Government
services were excluded from the purview of the Commission; communal
representation had always been a matter for political decision. The
appropriate Legislature was also authorized to confer by legislation
additional functions on the Commission. The expenses of the Commissions
were to be “charged” and not subject to the vote of the Legislatures.

The Drafting Committee, in its Draft of February 1948, adopted the
Constitutional Adviser’s Draft with the substitution of “Union” for
“Federation” and “State” for “Province”'.

One point of general interest may be mentioned: at one stage the Special
Committee expressed the opinion that the chapter relating to the Public
Service Commissions should be replaced by a general provision providing
for the constitution of Public Service Commissions for the Union and for
the States by Acts of the appropriate Legislatures which would also regulate
their functions^ The Special Committee made two further suggestions :
first, that the subject “State Service Commissions” should be transferred
to the Concurrent List and, second, that all references to the functions of
the Governors acting in ffieir discretion should be omitted. The Drafting
Committee prepared an amendment to give effect to the first of these
suggestions. The Constitutional Adviser, B. N. Rau, pointed out, however,
that this amendment would leave it open to the appropriate Legislature to
create or not to create a Public Service Commission eixactly as it thought
fit; and even if the Legislature once created a Public Service Commission
it would be open to a sucxessor Legislature to abolish it. The result would
be that the Government of the day would have unrestricted power of making
appointments to the public services. It was in order to prevent such a
result that Public Service Commissions were being set up under the
Constitution and provisions inserted in the Constitution to free these
Commissions as far as possible from political influences®.

The Drafting Committee considered this question again in its meetings
held on October 18-20, 1948, and decided not to proceed with this
amendment. ,

Consequent perhaps on the decision that important matters relating to
Public Service Commissions should be incorporated in the Constitution
itself, the idea of treating this as a concurrent subject does not seem to have
been seriously pursued; and, as already noticed elsewhere, though the Special

^Select Documents III, 6, articles 284-8, pp. 626-9-

^Minutes, April 11, 1948, Select Documents IV, 3(ii), p. 411.

’Select Documents IV, l(i), p. 344.

PUBLIC SERVICE COMMISSIONS

729

Committee’s recommendation that there should be no discretionary functions
conferred on Governors was not adopted as a matter of general policy,
amendments were drafted wherety the functions of a Governor in relation
to a Public Service Commission were to be exercised by him not in his
discretion but on the advice of the Ministry^

There was held in May 1948 a conference of the Chairmen of all the
Provincial Public Service Commissions in India and the Chairman and
members of the Federal Public Service Commission. At this conference
several suggestions were made for incorporation in the Constitutionl The
more important of these suggestions were :

(1) Provision should be made in the Constitution that the procedure
prescribed for the removal from office of judges of the Supreme Court
and High Courts and the Comptroller and Auditor-General should be
followed also in the case of members of the Public Service
Commissions. Accordingly, such removal would only be made by
an order of the President passed after an address presented to him
by each House of Parliament and supported by a majority of the
total membership of the House and not less than two-thirds of the
members present and voting.

(2) Following the Act of 1935, the Draft had provided that not less
than one-half of the number of members of a Public Service
Commission should be persons who had held public office for at least
ten years. The conference suggested that in order to provide for the
representation of all the interests involved, this percentage should
be reduced to one-third.

(3) Provision should be made so that the conditions of service of a
member of a Public Service Commission should not be varied to his
disadvantage during his tenure of office.

(4) Chairmen of Public Service Commissions should, like the members,
be eligible to hold office after retirement with the sanction of the
President or the Governor as the case might be. The conference
thought that while all restrictions on the future employment of
Chairmen and members of a Commission should not be abrogated, the
services of such experienced men should, if necessary, be available
to the Government.

(5) Before the President or the Governors made regulations excluding
any matter from the purview of Public Service Commissions, the
appropriate Commission itself should be consulted.

(6) While it could not be made obligatory on the Government to accept
the advice of a Commission in all cases, provision should be made for
reports of the Public Service Commissions to be compiled annually

^Select Documents TV, p. 411.

%-rf.. IV. l(i), pp. 347-9.

730

FRAMING OF INDIA’S CONSTITUTION

and laid before the appropriate Legislature, and in particular for a
list of cases to be placed before the Legislature where the advice of
the Commission was not accepted.

These suggestions were cast in the form of draft amendments; and these
and other proposals for amendment were considered from time to time by
the Drafting Committee which had the benefit also of the views of the
Ministry of Home Affairs and the Ministry of Law. The amendments
proposed by the Drafting Committee were discussed by the Constituent
Assembly on August 22 and 23, 1949. These amendments practically recast
all the provisions; and instead of five articles included in the Draft
Constitution, there were nine.

On the lines of the provisions of the Act of 1935 the Draft Constitution
prepared by B. N. Rau* and adopted by the Drafting Committee in February
1948“, visualized the setting up by agreement between two or more States
of joint Public Service Commissions to serve the needs of those States.
This Draft also provided that two or more States could come to an
arrangement whereby the Public Service Commission of one of the States
could serve the needs of all of them. This procedure was modified by the
Drafting Committee. The draft provision which was placed before the
Constituent Assembly for approval on August 22, 1949, contained an
amendment which laid down that the setting up of a joint Commission
would require, in the first place, resolutions to that effect passed by the
House or Houses of the Legislature of each of the States concerned. On
such resolutions being passed. Parliament was empowered by law to provide
for a joint Commission to serve the needs of . those States. The Union law
creating a joint Commission would contain the necessary incidental and
consequential provisions. Appointments to joint Commissions would be made
by the President who would also regulate the conditions of service of members
as well as make provision for their staff and their conditions of service®.

The scope of these provisions was explained by Ambedkar‘ ; the basic
principle was that each State should have its own Commission; but if for
administrative or financial reasons this was not possible, option was given
for two or more States by resolution to confer power on the Centre to make
provision for a joint Regional Commission. The central regulation of joint
Commission came in for criticism. Naziruddin Ahmad regarded it as an
attempt “wantonly to take away or deprive the Provinces of their legitimate
powers which were conceded to them in the Draft Constitution’”. On the
other hand, Brajeswar Prasad was opposed to separate State Commissions.
“Our experience has been”, he said, “that the members of the Provincial

‘^Select Documents III, l(i), clause 219(2), p. 90-1.

Hbid., Ill, 6. article 284(2), p. 626.

®C. A. Deb., Vol. IX, p. 555.

nbid., pp. 555-6.

mid., p. 551.

PUBLIC SERVICE COMMISSIONS

731

Public Service Commissions have not been able to prevent corruption,
inefficiency and nepotism”. He wanted one Commission for the whole
country*. Eventually the official proposal providing for Parliamentary
legislation for the setting up of joint Commissions was approved by the
Constituent Assemblyl

On the suggestion made by the Chairmen’s Conference to reduce the
“official” element in Commissions, the view of the Ministry of Home Affairs
was that there was a case for an even stronger representation of the service
element in the Commissions : and in any case the Ministry was opposed to
the proposal to reduce the proportion of half, prescribed for members with
the service qualificationl Eventually the Drafting Committee agreed that
at least half the number of members should continue to be persons possessing
the minimum ten-year service requirement. When this clause came up
for discussion in the Constituent Assembly on August 22, 1949, Jaspat Roy
Kapoor moved an amendment seeking to reduce this ratio to one-third, since
the provision as drafted, he thought, would give the official element a
permanent majority in every Public Service Commission. The longer the
period a person was in Government service, Kapoor declared, the more
conservative he became and developed the “whims, caprices and even the
idiosyncracies of that class”. They got out of touch with public opinion
and the changing needs of society. It would be necessary that the freshness
of outlook of non-officials must be brought to bear on the selection of
candidates in a fair measure®. H. V. Kamath wanted “not more than half”
to be officials'.

Defending the proposals of the Drafting Committee, Ambedkar pointed
out that the function of the Public Service Commission was to choose people
who were fit for public service. The judgment required to come to a
conclusion on the question of fitness presupposed a certain amount of
experience. The reason why a certain percentage was reserved for men in
service was not because there was a desire to oblige them, but to secure
persons with the necessary experience. But he was willing to meet Kamath’s
point and accept an amendment which would secure that instead of at least
half the members being persons from the service, they would constitute “as
nearly as may be” one-half the membership’. This amendment was adopted.

The original draft provided that the term of office of the members and
the Chairmen of Public Service Commissions would be prescribed by
regulations to be made by the President or the Governor as might be

‘C. A. Deb., 'VolJX, p. 560.

nbid., p. 571.

^Select Documents IV, l(i), p. 350.

nbid.

‘C. A. Deb., Vol. IX. pp. 576-82.

7W4., pp. 585-90.

'Ibid., pp. 592-3.

732

FRAMING OF INDIA’S CONSTITUTION

appropriate*. At the consideration, stage of these provisions the Drafting
Committee introduced two clauses specifying the term of office of members
of Commissions. A member of a Public Service Commission would hold
office for a term of six years from the date on which he entered upon his
duties or until he attained, in the case of the Union Commission, the age
of 65 years and, in the case of a State Commission or a joint Commission,
the age of 60 years, whichever was earlier’. The Chairman or a member
of a Commission would be ineligible for reappointment for a second term
to the same office. There was some discussion on the matter of the age-limit.
Jaspat Roy Kapoor was in favour of sixty years for members both of the
Union Co mmis sion and State Commissions. H. V. Kamath advocated a
uniform age-limit of sixty-five. Eventually the official proposal of the
Drafting Committee was accepted’.

Regarding the removal of members of Public Service Commissions, the
opinion of the Law Minister, Ambedkar, seems to have been different from
that held by the Home Ministry*. The Ministry appears to have been of
the view that it should be open to the President or the Governor (which
meant the executive) to remove a member of a Public Service Commission on
six months’ notice without being required to ask him to show cause against
such action being taken. The Drafting Committee at one stage proposed®
that the Chairman or a member of a Public Service Commission would be
liable to be removed from office in the case of the Union Commission in
like manner and on like grounds as a judge of the Supreme Court and in
the case of a State Commission, as a judge of a High Court.

Ambedkar was himself in favour of adopting this safeguard, but in order
partly to meet the wishes of the Home Ministry, he suggested a via media
as follows :

I. That a member of a Public Service Commission may be removed
from his office by the President or by the Governor by warrant under
his Sign Manual on the ground of misbehaviour on a report made to
that effect by the Supreme Court.

II. That the President or the Governor may suspend any member of a
Commission from office for misbehaviour. But a statement of the
cause of suspension shall be laid before the appropriate Legislature
•within seven days after the suspension, if it is then sitting, or, if
it is not then sitting, within seven days after the next meeting of the
Legislature and if within sixty days thereafter an address is presented
by the appropriate Legislature praying for the restoration of the
member to office, the member shall be restored accordingly, but if no

^Select Documents III, 6, article 285(2), pp. 626-7.

,4. Z)e6., Vol. IX, pp. 573-4.

Hbid., p. 594.

^Select Documents IV, 10, p. 583-5.

IV, l(i), p. 350.

PUBLIC SERVICE COMMISSIONS

733

such address is presented, the President or the Governor, as the case
may be, may declare the office of the member to be vacant and the
office shall thereupon become vacant.

III. That a member of the Commission shall be deemed to have vacated
his office if—

(a) he engages, during his term of office, in any paid employment
outside the duties of his office ;

(b) he becomes bankrupt or insolvent, or applies to take the benefit
of any law for the relief of bankrupt or insolvent debtors, or
compounds with his creditors, or makes an assignment of his salary
for their benefit ;

(c) except on leave granted by the President or the Governor, he
absents himself from duty for fourteen consecutive days or for
twenty-eight days in any twelve months ;

(d) he becomes permanently incapable of performing his duties.

IV. That if a member of the Commission becomes in any way concerned
or interested in any contract or agreement made by or on behalf of
the Government or in any way participates in the profit thereof, or
in any benefit or emolument arising therefrom, otherwise than as a
member of an incorporated company consisting of more than twenty-
five persons, he shall be guilty of an indictable offence and shall be
liable to such punishment as may be prescribed by law made by the
appropriate Legislature*.

The substance of this proposal was accepted and the amendments placed
before the Assembly on August 22, 1949, provided as follows ;

(i) The President could by order remove the Chairman or a member
of a Public Service Commission on the ground of misbehaviour ;

(ii) before doing so he was required to make a reference to the Supreme
Court and the order of removal could only be based on an inquiry
by the Supreme Court and its finding that the Chairman or other
member ought on any such ground to be removed ;

(iii) the President or a Governor could suspend from office a Chairman
or a member against whom an inquiry was proceeding;

(iv) the President could remove the Chairman or a member of a Public
Service Commission if he was adjudged an insolvent or engaged in
any paid employment outside the duties of his office or was unfit
to continue in office by reason of infirmity of mind or body^.

The scope of this amendment was briefly explained by Ambedkar and it
was passed on that day by the Assembly.

Gn the issue of eligibility to hold office after retirement, the provision made
originally in the Draft Constitution, following the Government of India Act,

'Select Documents IV, 10, pp. 584-5.

'C. A. Deb., Vol. IX, p. 573, new article 285-A.

734

FRAMING OB INDIA’S CONSTITUTION

1935, was that the Chairman of the Union Commission would be ineligible
for any further Government office ; the Chairman of a State Commission
would be eligible only to be appointed a member or Chairman of the Union
Commission or Chairman of another State Commission. Other members
would be eligible for further employment provided that the approval of
the President or the Governor, as the case might be, was obtained’. The
conference of the Chairmen of Public Service Commissions made the
recommendation that while some restrictions should be imposed upon the
future employment of Chairmen and members of a Commission, tliese should
be the same for both ; and accordingly, in order that the services of
experienced men might, if necessary, be available to the Government, the
conference favoured a provision being made enabling them to hold further
office with the approval of the President or the Governor, as the case might
be“. On the other hand, Santhanam, Ananthasayanam Ayyangar, Mrs.
Durgabai and T. T. Krishnamachari suggested an amendment to lay down
that the only appointments to which a member of the Union Public Service
Commission would be eligible after retirement would be as Chairman of
the Union Public Service Commission or of a State Commission; and that
a member of a State Commission would on retirement be ineligible for any
office other than the Chairman or a member of the Union Commission or
the Chairman of a State Commission. The principle of this amendment
was accepted by the Drafting Committee which incorporated it in suitable
terms in the revised draft of the article moved by Ambedkar in the
Constituent Assembly on August 22, 19491 The Chairman of the Union
Commission would be ineligible for any further office.

During the debate on these provisions the point was raised that members
of the Commission should not be precluded from holding honorary
appointments. Jaspat Roy Kapoor and Hriday Nath Kunzru supported this
view\ Dealing with this issue, Ambedkar said that the one way of making
the Comnaission independent was to deprive its members of any office with
which the executive might tempt them. Pay was not the only thing which
a person obtained from his office; there were things like “pay, pickings
and pilferings”. It was desirable to exclude even the possibility of such
a person being placed in a post where, although he did not get a salary,
he might obtain a certain degree of influence". The position of members
of joint Commissions was raised by Lakshminarayan Sahu°. Ambedkar
explained that a joint Commission would be a State Commission for the
purposes of the article.

'Select Documents III, 6, article 285(3), p. 627.

nbid., lV, lCi), p. 349.

’C. ^. £)e&., Vol. IX, p. 574, article 285-C.

TiiU, pp. 580, 584.

‘Ibid., pp. 592-3.

‘Ibid., p. 516.

PUBLIC SERVICE COMMISSIONS

735

On the question of the functions of the Commissions, the original Draft
Constitution prepared by the Constitutional Adviser followed closely the
provisions of sections 266 and 267 of the Government of India Act of
1935h The Draft provided that it would be the duty of the Federal or
Provincial Public Service Commissions to conduct examinations for
appointments to the services of the Federation or the Provinces, as the case
might be. A duty was also imposed on the Federal Commission, if requested
by two or more Provinces, to assist them in framing and operating schemes
of joint recruitment for any services for which candidates possessing special
qualifications were required.

The President in respect of the All-India Services and other services and
posts under the Federation, and the Governor in respect of the
provincial services, were empowered to make regulations specifying matters
in respect of which it would not be necessary to consult the Commission.
But subject to these regulations, the appropriate Commission was to be
consulted on aU matters relating to the methods of recruitment to civil
services and civil posts; on the principles to be followed in making
appointments, promotions and transfers and on the suitability of candidates
for such appointments, promotions and transfers; on disciplinary matters,
including memorials or petitions relating to such matters; on any claim of
a civil servant for the reimbursement of costs incurred by him in defending
legal proceedings instituted against him in respect of acts done or purported
to be done in the execution of his duty; and on any claim for the award of
extraordinary pensions or injury pensions. A further provision was added
that the Public Service Commission need not be consulted on “the manner
in which appointments and posts are to be allocated as between various
communities in the Federation or a Province”. Provision was also made
enabling Parliament or the appropriate Provincial Legislature by law to
empower a Commission to exercise additional functions; but it was laid
down that such functions would not be exercisable under a Provincial Act
“in relation to any person who is not a member of one of the services
of the Province except with the consent of the President”. The Drafting
Committee adopted these clauses verbatim with the substitution of “Union”
for “Federation” and “State” for “Province”.

As already noticed, the Conference of the Chairmen of Public Service
Commissions had no comments on the scope of matters on which Commissions
were required to advise. They agreed, in commenting on the powers given
to the President and Governors to exclude matters from the purview of the
Commissions, that in existing circumstances certain restrictions on the
functions of the Commissions were necessary and inevitable and further that
these restrictions should be imposed by regulations and not by statute.
Such regulations according to them should be made in consultation vvith the

Select Documents l(i), clauses 221 and 222, pp. 92-3.

736

FRAMING OF INDIA’S CONSTITUTION

Union or State Commissions, as the case might be'. The Drafting
Committee prepared a suitable amendment to give effect to this
recommendation.

Meanwhile. Santhanam, Ananthasayanam Ayyangar, Mrs. Durgabai and
T. T. Krishnamachari sponsored an amendment under which the exclusion
of matters from the purview of Public Service Commissions could not be
made by the President or the Governor — i.e. the executive — but only by an
Act of the appropriate Legislature. Commenting on this suggestion, the
Constitutional Adviser expressed the fear that this would make the provision
unduly rigid, though he prepared an amendment to give effect to this
suggestion in case the Drafting Committee wished to accept it’. This
matter was considered by the Government. The Ministry of Home Affairs
pressed the view that the power to exclude matters from the purview of
Public Service Commissions should be retained by the executive by
regulation: but it was willing to accept provision being made that all
regulations made in this behalf should be laid before the appropriate
Legislature for a stated period (say, 14 days) and be subject to such
amendment as might be made therein by a resolution of that Legislature.
Ambedkar also accepted this via media which in effect would make the
position less rigid, while at the same time making it clear that any proposal
to limit the jurisdiction of a Public Service Commission would come directly
within the authority of Parliament or the appropriate Legislature^ The
power to make regulations excluding matters from the purview of the Public
Service Commissions was accordingly included as a separate proviso to the
article — ^article 302(3) of the Constitution — and it was also provided that
all regulations made under this proviso would be laid for not less than
fourteen days before each House of Parliament, or the House or each House
of the State Legislature, as the case might be, and would be subject to such
modifications as Parliament or the Legislature might make during the
session in which they were so laid*.

The Government of India Act, 1935, contained a provision that the Public
Service Commissions would not be consulted on the manner in which
appointments and posts were to be allocated as between the communities ;
and a provision on these lines was included in the Draft Constitution prepared
by the Constitutional Adviser in October 1947 and adopted by the Drafting
Committee in February 1948. . There was at the time an elaborate “communal
rostar” of appointments apportioning percentages of vacancies to various
communities, with detailed instructions issued indicating the manner in
which the apportionment was to be effected. These reseiwations were always
treated as matters of Government policy and not to be referred for the

^Select Documents IV, l(i), p. 352.

“/W4., p. 351.

nbid., IV, 10, pp. 583-4.

V. M. DeL, Vol. IX, pp. 597-8.

PUBLIC SERVICE COMMISSIONS

737

advice of bodies like the Public Service Commissions.

As the process of , constitution-making advanced^ the principle of equality
of . opportunity in respect of State appointments was generally accepted;,
and only two reservations were allowed to this principle — one enabling the
State to make , provision for the reservation of appointments, in favour , of
backward classes of citizens [article 16(4)] and tlie other enjoining that the
claims of members of the Scheduled Castes and Scheduled Tribes should, be
taken into consideration, consistently with the maintenance of good
administration, in the making of appointments to Government posts (article
335). With this decision finalized, the only communities which could possibly
have any special representation in the public services were, the backward
classes and the Scheduled Castes and Scheduled Tribes; , .accordingly, an
amendment was placed before the Constituent.Assembly in August 1949
which changed the clause as follows:

Nothing in clause (3) of this article shall require a Public Service
Commission to be consulted as respects the manner in which appointments
and posts are to be reserved in favour of miY backward class of citizens
in the Union or a State\

This clause aroused some lively controversy. P. S. Deshmukh moved an
amendment to exclude from the jurisdiction of the Public Service Commission
not only the reservation of posts in favour of backward classes but also
such reservation among all the various classes “according to their numbers
in the Union or a State”. The purpose of this amendment, he explained,
was to secure a just and fair representation for all classes in the public
services of the Union and the Stales and not leave it to bare competition
and to the sweet choice of the Public Service Commissions. He mentioned
the position particularly in Madras where the various communities were
arranged in various groups and each group was given representation in
Government services on the basis of its population. He said that eighty
per cent of the people took no part so far as the “civilized things of life”
were concerned, and there was an iron curtain between them and the rest :
unless every community, especially the larger and more populous communities
advanced equally and the advanced communities afforded diem opportunities
of development, the progress of India would be impossible. He expressed
great apprehension that if the clause stood as drafted, the backward classes
were likely to. suffer:

Backward classes are likely to be defined in a very limited and restricted
manner ; it is not the claim of only the Scheduled Castes that they are
backward ; it is not the tribal people alone who should be considered
backward ; there are millions of others who are more backward than these
and there is no rule nor any room so far as these classes are concernedl

^ciA:Deh, y6i. lX, p. 598.
mid,, pf 604.

738

FRAMING OF INDIA’S CONSTITUTION

This view was supported by Naziruddiu Ahmad, Phool Singh and Yashwant
Rai; but there was also a considerable amoimt of opposition to the proposal.
Ambedkar, summing up the position briefly and succinctly, said that the
real protection for backward classes was the one that had been adopted by
the Drafting Committee, namely, to permit the Legislature to fix a certain
quota to be filled by these classes, and that this matter would have to be
left to the Backward Classes Commission for which there was provision in
the Constitution. There was some further controversy on the subject later
when the clause was again debated on November 14, 1949^ The Drafting
Committee met some of the members in this connection and eventually the
following amended clause was placed before the Assembly by T. T.
Krishnamachari for acceptance ;

Nothing in clause (3) shall require a Public Service Commission to be
consulted as respects the manner in which any provision referred to in
clause (4) of article 16 may be made or as respects the manner in which
effect may be given to the provisions of article 335.

The purpose of the amendment was thus explained by the mover :

Article 16(4) is an enabling provision in regard to special representation
for backward classes. Article 335 is an enabling provision in regard to
taking into consideration the claims of Scheduled Tribes and Scheduled
Castes. These two enabling provisions are brought together in this
particular clause. It has merely been made permissible for the Governments
not to consult the respective Public Service Commissions in these cases
because of the mandatory character of the provision in clause (3) which
requires the Public Service Commission to be consulted on every matter.
So there is no question of any injustice being done either to the Scheduled
Castes and Scheduled Tribes or to the backward classes or any preference
being given to one over the other.

The Assembly finally accepted this provision’.

The draft article as prepared by the Drafting Committee enabling the
appropriate Legislature to confer additional functions on the Commissions
provided that in the case of State Commissions no such functions could be
exercised in relation to persons other than State civil servants without the
sanction of the President*. The Drafting Committee recast the provision
later; and on August 23, 1949, Ambedkar proposed a substitute article
which simply stated that Parliament or, as the case might be, the Legislature
of a State might provide for the exercise of additional functions by the
appropriate Commission “as respects the services of the Union or the State
and also as respects the services of any local authority or other body corporate
constituted by law or of any public institution”. This provision, as finally

‘C. A. Deb.. Vol. IX, p. 630.

^Ibid., Vol. XI, pp. 494-503.

‘Ibid., pp. 547-9.

‘Select Documents III, 6, article 287, p. 629.

PUBLIC SERVICE COMMISSIONS

739

adopted in the Constitution, made it quite clear that the power of the
Legislature could be exercised to bring within the scope of the Public
Service Commission persons in the service of local authorities as well as
other Government corporations or public institutions’.

The Draft Constitution had provided that the expenses of the Union as
well as the State Public Service Commissions, including salaries, allowances
and pensions payable to members as well as the staff of the Commissions,
should be charged on the revenues of the Union or the State, as the case
might be, and not subjected to an annual vote^ A suggestion was made
by Santhanam for excluding the salaries, allowances and pensions payable
to the staff from the category of non-voted expenditure. Commenting on
this, the Constitutional Adviser observed that these words had been specifically
mentioned in the article to remove any doubt as to whether the expenses of
the Union or a State Public Service Commission included such salaries,
allowances and pensions. To ensure the independence of the Public Service
Commissions it was necessary, in his opinion, that these items should be
treated as charged items as in the case of the Supreme Court, the High Courts,
the Comptroller and Auditor-General, etc.^ This article was retained without
any change in the final draft. But consequent on the financial provisions
which created a Consolidated Fund for the Union and for each State, a
drafting change was made making these items of expenditure . chargeable
on the appropriate Consolidated Fund.

The Drafts prepared by the Constitutional Adviser and the Drafting
Committee did not contain any provision for the submission of reports by
Public Service Commissions. The Conference of Chairmen of Public Service
Commissions held in 1948 felt that while it was not necessary to make it
obligatory on the Governments to accept the advice of Public Service
Commissions, there should be provision for submission to the appropriate
Legislature of a list of cases in which the advice tendered by a Commission
had not been accepted. With this end in view the conference suggested that
provision should be made for annual reports of the Public Service Commissions
to be prepared and laid before the appropriate Legislature. The Drafting
Committee accepted this recommendation and included a new article (288-A)
providing, first, for the Union Public Service Commission to present annually
to the President a report on its work; and second, for the President to cause
a copy of such report to be laid before Parliament, together with a

'C. A. Deb; Vol. IX, pp. 598 and 632. It may be mentioned as a matter of
interest that in pursuance of this enabling provision, recruitment to posts in the
Delhi Munidpal Corporation and the Employees’ State Insurance Corporation has
been brought within the purview of the Union Public Service Commission and
recruitment to the Bombay Municipal Corporation has been brought within the
jurisdiction of the State Commission.

^Select Documents III, 6, article 288, p. 629.

®/Wd., IV, l(i), pp. 352-3.

740

FRAMING OF INDIA’S CONSTITUTION

memorandum explaining, in cases where the advice of the Commission had
not been accepted, the reasons for such non-acceptance. A similar provision
was also included in regard to State Commissions'. There was general
agreement on the desirability of this provision.

After the adoption by the Constituent Assembly of the provisions relating
to- the Public Service Commissions, certain practical considerations affecting
these bodies had to be met. It was found that all the permanent members
of the Federal Public Service Commission as then constituted were person-s
who had held office for more than ten years whereas under the Constitution
as adopted only “as nearly as may be” half the members were to be “official”
members: and at least in the Punjab and Bombay, the Chairmen were persons
past the age of sixty years. To enable these persons to continue in office, an
article — ^310-B— was moved in the Assembly on October. 7. 1949, among the
temporary and transitional provisions. This article provided for two things.

(i) It laid down that the members of the Public Service Commission
of the Dominion of India and the Provinces would on the
commencement of the Constitution become the members of the Union
Commission or the corresponding State Commission ; and

(ii) all of them would, notwithstanding the general provisions about
Public Service Commissions in the Constitution, continue to hold
office xmtil the expiration of their term “as determined under the rules
which were applicable immediately before such commencement to
such members”.

This article was adopted by the Assembly’.

In the course of revision the articles relating to the Public. Service
Commissions were renumbered 315 to 323 and the article making provision
for the continuance of the existing members of the various Commissions was
numbered 378.

NOTE ON AMENDMENTS •

, Article 316 : A new clause (1-A) was added to this article by the
Constitution (Fifteenth Amendment) Act, 1963;

If the office of the Chairman of the Commission becomes vacant or if any
such Chairman is by reason of absence or for any other reason unable
to perform the duties of his office, those duties shall, until some person
appointed under clause (1) to the vacant office has entered on the duties
thereof or, as the case may be, until the Chairman has resumed his duties,
be performed by such one of the other members of the Commission as
the President, in the case of the Union Commission or a Joint Commission,
and the Governor of the State in the case of a State Commission, may
appoint for the purpose.

^Select Documents IV, l(i), p. 353.

“C. A. Deb., Vo\. X. pp. 8-9.

MINORITIES

The problem of minorities had bedevilled Indian politics for a long time.
It was in fact the one single factor, above all others, that held up the progress
of the country towards freedom and independence.

The origins of the cleavage between the two communities, Hindus and
Muslims, can be traced back to the period immediately following the revolt
of 1857. But official recognition for the theory that the two communities
could not be expected to vote together for their common good was given
when Minto, then Viceroy of India, recommended to the Secretary of State
in October 1908, that the Muslims should be granted separate electorates ;
The Indian Muhammadans are much more than a religious body. They
form in fact an absolutely separate community, distinct by marriage, food
and custom, and claiming in many cases to belong to a race different
from the Hindus\

This represents the starting point of a series of developments which
eventually led in 1947 to the partition of India into two separate countries.
Responsible opinion in India did not fail to recognize and point out the
evil effects that such a policy would have. Gopal Krishna Gokhale said:
The principle of recognizing races and creeds stands in no need of
encouragement from Government, as the division of interests caused by it
has already been the bane of this country^

The consequence of recognizing a division of interests on communal lines
was also realized by Morley and later by Montagu, but official policy was
not affected by this. Step by step the recognition of communal claims and
communal interests became part of the basic policy of the British Govemment
in India. Each step in the direction of the establishment of popular
government and -representative institutions was accompanied by a
corresponding emphasis on the obligation of the British Government to
ensure that the minorities were protected from oppression and exploitation
at the hands of the majority. More and more minorities came to be
recognized as being in need of protection, through separate representation in
the Legislatures, reserved quotas in the public services, and in various other
ways. In course of time the Sikhs, the Ango-Indians, the Indian Christians,
the depressed classes (the name then given to the ‘'untouchable'' section
of the Hindu community— now generally known as the “Scheduled Castes”) —

^Quoted in VLP. Menon, The Transfer of Power in India, p

Hbid,, p* 9 .'

742

FRAMING OF INDIANS CONSTITUTION

all these communities were treated as minorities in need of such protection.
In fact, the concept of minorities was so expanded as to include even the
prosperous European commercial and mercantile community in India as
needing separate representation in the Legislatures.

When the reforms of 19.19 introduced the scheme of dyarchy in the
Provinces, with the categories of reserved and transferred subjects, the
Instrument of Instructions issued to the Governors contained a provision
that in regard to the minorities they should look for the redress of their
grievances and the improvement of their condition to the working of
representative institutions.

This exhortation was in the right democratic tradition. At the same time
there was another instruction which declared that

no order of your Government and no Act of your Legislative Council
shall be so framed that any of the diverse interests of or arising from
race, religion, education, social condition, wealth or any other circumstance
may receive unfair advantage or may unfairly be deprived of privileges
or advantages which they have heretofore enjoyed. .

Minority rights and safeguards figured as one of the most important features
of the Government of India Act, 1935. It may be recalled that, on the
question of representation in the Legislatures, the delegates to the Round
Table Conference in London were unable to reach an agreed solution and
it therefore became necessary for the British Prime Minister, Ramsay
MacDonald, to give what is known as the Communal^Award in April 1932.
This award accorded representation through separate electorates to Muslims,
Europeans, Sikhs, Indian Christians and Anglo-Indians. Seats were also
reserved for the Marathas in selected general constituencies in Bombay. The
depressed classes were given seats to be filled by election from special
constituencies in which they alone could vote, though they were also entitled
to vote in the general constituencies\ Special seats were also allotted to
women, labour, commerce and industry, mining and planting, and landholders.

Apart from separate electorates, a special responsibility was imposed on
the Governors to safeguard the legitimate interest of the minorities. In
the exercise of this special responsibility the Governors were enjoined to
secure that

those racial or religious communities for the members of which special

^Government of India Act (1924 Reprint), p. 271.

*The allocation of seats to the depressed classes was subsequently modified by
the “Poona Fact” under which they got a larger number of seats; but separate
electorates were abolished and the members of the depressed classes were to enrol
themselves in the general electoral roil. They were to form an electoral college
which would in the first instance elect four candidates for each seat in a “primary
election”. These four would be the candidates for the general election and the
poll for the general election would be extended to all the voters in the genera!
constituency— both the depressed classes and others. See Gwyer and Appadorai,
Speeches and Documents on the Indian Constitution, 1921-47, Vol I, pp. 261-6.

MINORITIES

743

representation is accorded in the Legislature, and those classes of the
people committed to his charge who, whether on account of the smallness
of their number or their lack of educational or material advantages or
from any other cause, cannot as yet fully rely for their welfare upon
joint political action in the Legislature, shall not suffer, or have reasonable
cause to fear, neglect or oppression'.

One of the principal demands in connection with the safeguarding of
minority rights was their claim for representation in the public services.
From 1925 the Government of India had followed the policy of reserving
a certain percentage of direct appointments to Government service for the
redress of communal inequalities. This policy was adopted “mainly with
the object of securing increased representation for Muslims in the public
services”. In 1934 this policy was placed on a formal basis, 25 per cent of
all posts to be filled by direct recruitment of Indians being earmarked for
Muslims and 8i per cent for other minority communities. Special quotas
were fixed for Anglo-Indians in the subordinate posts in Railways
and Posts and Telegraphs and certain branches of the Customs services”.
The Instrument of Instructions issued to the Governors in 1937,
under the Government of India Act, 1935, contained the following
specific direction :

Further, Our Governor shall interpret the said special responsibility as
requiring him to secure a due proportion of appointments in Our Services
to the several communities, and so far as there may be in his Province
at the date of issue of these Our Instructions an accepted policy in this
regard, he shall be guided thereby, unless he is fully satisfied that
modification of that policy is essential in the interests of the communities
affected or of the welfare of the public®.

In spite of all these safeguards, the situation in regard to the minorities
deteriorated sharply after 1937. In the Legislatures constituted under the
Government of India Act, 1935, the Congress was returned in impressive
majorities and was able to form Governments in seven out of the eleven
Provinces. On the other hand, the success of the Muslim League at the
polls was poor. The leader of the Muslim League, M. A. Jinnah, was
nevertheless able in a short time to bring all Muslim parties under the banner
of the League. This he did by working up commimal animosity on unverified
charges of “atrocities” of the Congress Government* (most of which were
found to be without any foundation) and by persistent propaganda that
the Congress was only a Hindu body, in support of which he instanced the
Bcmde Malaram song, the tricolour flag, the Vidya Mandir Scheme of

’Gwyer and Appadorai, p. 379.

’‘Ibid., pp. 116-9. Government of India, Home Department Resolution dated July
4,1934.

Wd., pp. 379-80.

‘See also the Historical Background.

744

FRAMING OF INDIA’S CONSTITUTION

education and the Hindi-Urdu controversy*.

The problem of Hindu-Muslim relations thereafter assumed increasingly
formidable proportions until in March 1940 the League adopted the famous
Pakistan resolution which stated that no constitutional plan would be
workable or acceptable to the Muslims unless it recognized the basic
principle that geographically contiguous units should be demarcated into
regions so constituted that the areas in which Muslims were numerically
in a majority were grouped to constitute “Independent States’’^

In all these activities, the Muslims were not without support from the
British Government. Commenting on the communal situation, George
Schuster, a former member of the Governor-General’s Executive Council,
remarked:

I believe that the presence of some impartial arbitral authority may provide
the key to the whole communal problem. I believe that in the long run
this can best be secured by developing the function of the British Crown®.

With the declaration of the second world war, the demand of the Indian
National Congress for an immediate declaration by the British Government
accejpting in principle Indian independence and a constitution framed in
India through an elected Constituent Assembly received fresh emphasis. But
on the part of the British Government, while it was conceded that the scheme
of federation outlined in the Government of India Act, 1935, was open to
revision, and the principle of a Constituent Assembly was also conceded,
independence was made conditional on a settlement of various issues in which
the British Government claimed a direct responsibility, the most important
of them being the communal issue. Affirming on August 8, 1940, that
Dominion Status was the objective of the British Government in India and
that the framing of a new constitution would be the responsibility primarily
of Indians themselves, Linlithgow, the Viceroy, made the following important
reservation clearly intended as an assurance to the Muslims that their
demands would receive due recognition ;

It goes without saying that they (the British Government) could not
contemplate the transfer of their present responsibilities for the peace and
welfare of India to any system of government whose authority is directly
denied by large and powerful elements in India’s national life. Nor
could they be parties to the coercion of such elements into submission to
such a government*;

Underlining the communal differences in India, Amery, the Secretary of
State, was even more forthright ;

The constitutional deadlock in India is not so much between His Majesty’s

'V. P. Menon, The Transfer of Power in India, p. 56.'

Hjwyer and Appadorai, Speeches and Docurrtents on the Indian Constitution,
1921-47, pp. 443-4.

’George Schuster and Guy Wint, India and Democracy, p. 439.

‘Statement of August 8, 1940. Select Documents I, 15, p. \2A.

MINORITIES

745

Government and a consentient Indian opposition as between tbe main
elements in India’s own national life. It can therefore not be resolved
by the relatively easy method of a bilateral agreement between His Majesty’s
Government and the representatives of India but only by tbe much more
difficult method of a multi-lateral agreement in which His Majesty’s
Government is only one of the parties concerned’.

A notable feature of the wartime proposals of the British Government
(the Cripps proposals of 1942) was adequate protection of racial and religious
minorities as a condition precedent to the transfer of power from British
to Indian hands. No progress was however made on the basis of these
proposals.

The Cabinet Mission’s statement of May 16, 1946, visualized a Union
of India in which the powers of the Centre would be limited to foreign
affairs, defence and communications : all other subjects as well as all
residuary powers were to vest in the Provinces”. This idea of autonomous
units, with extensive powers and a relatively weak Centre was admittedly
a concession to communal apprehensions. It was, in the view of the Cabinet
Mission, a compromise proposal offered in the hope of avoiding “a separate
and fully independent sovereign State of Pakistan”. Against Pakistan of
any dimensions — whether of the size contemplated by the Muslim League
or in a modified form — the Cabinet Mission found “weighty administrative,
economic and military considerations”. The plan propounded by the Mission
was proposed as an alternative to the demand of the Muslim League for the
partition of India; and in putting forward their proposals the Cabinet Mission
had in mind what they described as the “very real Muslim apprehension
that their culture and political and social life might become submerged in
a purely unitary India, in which the Hindus with their greatly superior
numbers must be a dominating element”. The Cabinet Mission’s statement
provided further safeguards for minorities : it was suggested that a provision
should be made in the new Constitution that any question raising a major
communal issue in the Legislature should require for its decision a majority
of the representatives, present and voting, of each of the two major
communities as well as a majority of all the members present and voting.
The statement also visualized provisions in the nature of a bill of rights
as a partial answer to the issue of minority rights and proposed the setting
up by the Constituent Assembly at the preliminary stage of a committee
on the rights of citizens, minorities and tribal and excluded areas. This
committee was to contain due representation of the interests affected and its
function was inter alia to report to the Union Constituent Assembly upon
the provision to be made for the protection of minorities. The Cabinet
Mission made it clear that the cession of sovereignty to the Indian people

■17. C. Deb., Vol. 364, col. 871.

^Select Documents I, 48(i), p. 213.

746

FRAMING OF INDIA’S CONSTITUTION

on the basis of a constitution framed by the Assembly would be conditional
on adequate provisions being made for the protection of minorities\

When the Constituent Assembly met in December, 1946, the Muslim League
boycotted the Assembly and did not send any representatives : the great
majority of the members present represented the Indian National Congress.
The Congress had consistently declared in the past that it was

its primary duty as well as its fundamental policy to protect the religious,
linguistic, cultural and the other rights of the minorities in India so as
to assure for them in any scheme of government to which the Congress
would be a party, the widest scope for their development and their
participation in the fullest measure in the political, economic and cultural
life of the nationl

Accordingly in the Objectives Resolution moved by Jawaharlal Nehru in
the Constituent Assembly on December 13, 1946, it was stated that in
the Constitution drawn up for the future governance of India

adequate safeguards shall be provided for minorities, backward and tribal
areas and depressed and other backward classes^.

A resolution for the setting up of an Advisory Committee on Fundamental
Rights, Minorities and Tribal and Excluded and Partially Excluded Areas
was moved by Govind Ballabh Pant in the Constituent Assembly on January
24, 1947. He laid special emphasis on the importance of the issue of
Minoiities :

The question of minorities everywhere looms large in constitutional
discussions. Many a constitution has foundered on this rock. A

satisfactory solution of questions pertaining to minorities will ensure the

health, vitality and strength of the free State of India that will come into
existence as a result of our discussions here. The question of minorities
cannot possibly be overrated. It has been used so far for creating strife,
distrust and cleavage between the different sections of the Indian Nation.
Imperialism thrives on such strife. It is interested in fomenting such

tendencies. So far, the minorities have been incited and have been

influenced in a manner which has hampered the growth of cohesion
and unity. But now it is necessary that a new chapter should start and
we should all realize our responsibility. Unless the minorities are fully
satisfied, we cannot make any progress : we cannot even maintain peace
in an undisturbed manner*.

As already remarked, the representatives of the Muslim League were not
participating in the deliberations of the Assembly at this stage. The prevalent
feeling among the members present was that notwithstanding the absentee^

^Cabinet Mission Statement, May 25, 1946. Select Documents I, 51, p. 258.

^Harlpura Congress Session, F^ebraary 1938. Dr. Fattabhi Sitaramayya, The
History of the Indian National Congress, Vol. 11, p, 78.

X Deb.,Yoll,p.S7.

Vol II, pp. 310-1.

MINORITIES

747

members, the Assembly and its committees should proceed with their
respective tasks ; at the same time all care should be taken to ensure that
the Muslim League was also given the fullest opportunity effectively to
participate in the framing of the Constitution should that body decide at
any stage to join the Assembly and its committees. There was also the further
anxiety to ensure that the committee should be so constituted as to ensure
full discussion of the claims of all minorities, irrespective of their numerical
strength.

With these two objects in view the resolution for the constitution of the
Advisory Committee, as finally adopted by the Assembly, provided that the
committee would initially consist of fifty members elected by the Assembly.
Of these, sffiven were to be representatives of the Hindus of Bengal, the
Punjab, the North-West Frontier Province, Baluchistan and Sind, where they
were in a minority. Seven members were representatives of the Scheduled
Castes: six were Sikhs, four Indian Christians, three Anglo-Indians, and
three Parsis. There was one representative each of the plains tribes of
Assam, the tribal area of the North-West Frontier Province, and the tribal
area of Baluchistan. Three members were representatives of the excluded
and partially excluded areas: and there were twelve general names. The
resolution authorized the President of the Assembly to nominate not more
than twenty-two additional members, seven of whom were to be the
representatives of the Muslims of Madras, Bombay, the United Provinces,
Orissa and Assam. Moving the resolution, Govind Ballabh Pant explained
that each of the minorities had been consulted and had agreed to the
composition of the committee. He added :

The voice of the m inorities and the representatives of the excluded and
tribal areas will preponderate in this committee. They will be in a
position to record their decisions and no section will be in a majority. So
this committee will fully reflect the opinion of the minorities and the
backward tracts and will, I hope, be able to reach decisions which will
fully secure their position and ensure the protection of their rights'.

Tha Advisory Committee met on February 27, 1947, to constitute various
sub-committees, the Minorities Sub-Committee being one“. The personnel
of the sub-committee included all the minority interests and the mission

’C. A. Deb.. Vol. II, p. 310.

®At this meeting twenty-six members were elected: Jagjivan. Ram, Abul Kalam
Azad, B. R. Ambedkar, Jogendra Singh, Syama Prasad Mookerjee, Ujjal Singh,
Gyani Harnam Singh, Bakshi Tek Chand, Gopichand Bhargava, H. J. Khandekar,
P. R. Thakur, H. P. Mody, H. C. Mookherjee, P. K. Salve, S. H. Prater, Frank
Anthony, C. Rajagopalachari, Jairamdas Daulatram, Rajknmari Amrit Kaur, R. K.
Sidhva, Rup Nath Brahma, M. Ruthnaswamy, M. V. H. Gollins, K. M. Munshi,
Alban D’Souza, Govind Ballabh Pant. Subsequently the following members were
added : Hifeur Rehman, Ali Zaheer, Abdul Qayum Ansari, Khaliquzzaman, Ismail
Chundrigar, Muhammad Saadulla, Kasturbhai Lalbhai, Kameshwar Singh of Dar-
bhanga, Seth Govind Das, Lakshmi Kant Maitra, Thakurdas Bhargava.

748

FRAMING OF INDIA’S CONSTITUTION

of the Advisory Gommittee was, as Vallabhbhai Patel put it, to safeguard
the interests of all minorities to their satisfaction.

The Sub-Committee on Minorities met later on the same day. H. C.
Mookherjee, a respected Christian leader from Bengal, was elected Chairman.
There was some discussion on the scope of its work which inevitably
overlapped with that of the Fundamental Rights Sub-Committee. After a
two days’ discussion, the sub-committee decided that members should send
their views in the form of answers to a questionnaire drafted in simple
language. Such a questionnaire was presented by K. M. Munshi in the
following terms ; .

(1) What should be the nature and scope of the safeguards for a minority
in the new Constitution ?

(2) What should be the political safeguards for a minority

(a) in the Centre ;

(b) in the Provinces ?

(3) What should be the economic safeguards for a minority

(a) in the Centre ;

(b) in the Provinces ?

(4) What should be the religious, educational and cultural safeguards for
a minority ?

(5) What machinery should be set up to ensure that the safeguards are
effective ?

(6) How is it proposed that the safeguards should be eliminated, in what
time and under what circumstances’?

Ambedkar submitted an exhaustive note on the subject of minorities and
fundamental rights”. As a leader of the Scheduled Castes, he was primarily
concerned with the political and social safeguards for the Scheduled Castes,
and with ensuring that the new Constitution provided adequately for their
uplift. By way of political safeguards, he suggested the establishment of
non-parliamentary irremovable executives both in the Union and in the units.
He proposed that the Scheduled Castes should have a minimum representation
according to their population ratio in the Legislatures, Ministries, in
municipalities and local boards. These representatives were to be elected
through separate communal electorates. In the Ministries of the Union
and of the units the representatives of the Scheduled Castes and other
minorities were to be elected by the members of the Legislature belonging
to each minority community by the method of proportional representation
by means of the single transferable vote. Ambe&ar suggested further that
the Scheduled Castes should have a minimum share of the posts in the
various public services in proportion to their population and that this
reservation should be made all along the line — ^in the Union services, the

'Minutes. Select Documents II, 9(5), p. 391.

''Memorandum and draft articles on the rights of States and minorities. 5'e/ect
Documents II, 4(ii) (d), pp. 90*6. .

MINORITIES

749

services of the units and in the services of municipalities, local boards and
other local authorities. On every Public Service Commission and other
selection committees the Scheduled Castes were to have at least one
representative.

On the social side, Ambedkar was specially concerned with what he called
social boycott, which he described as a “sword of Damocles”. Only the
untouchables knew what a terrible weapon this could be. He therefore
suggested stringent punishment for social boycott and for promoting,
instigating or threatening social boycott.

Ambedkar’s suggestions for the amelioration of the conditions of the
Scheduled Castes included generous provision of funds in the budgets of
the Governments of the Union and of the units for higher education,
secondary and college education, and for education abroad of members of
this community ; the settlement of Scheduled Castes in separate villages ;
and the setting up of a Settlement Commission for this purpose. Finally,
to watch over the progress of these measures, he wanted an office of
Superintendent of Minority Affairs to be created, with the same status as
the Auditor-General, whose duty would be to prepare an annual report on
the treatment of minorities by the public as well as by the Governments of
the Union and the States ; and on any transgressions of safeguards ox
miscarriage of justice arising out of communal bias by the Governments
and their officers. These reports were to be placed before the Union and
the State Legislatures and discussed by them.

Jagjivan Ram, a prominent leader of the Scheduled Castes (who was a
Minister in the Central Government), emphasized that the guarantees should
be directed to the protection of racial and religious minorities (for example,
Christians and aboriginals) from “extinction” and the assimilation of
minorities like the Scheduled Castes in the parent body by bringing them
to a level equal with that of others in the community*. Many of the
safeguards could in his view be provided in the form of fundamental rights.
The specific safeguards which he suggested for the Scheduled Castes were
reservation of seats in proportion to their population in the Legislatures
and in the Central and. State Cabinets; and reservation of posts in services
of all categories, civil and military, and in the judiciary. He also urged
special ameliorative measures; a Housing Board to allot suitable plots and
provide healthy houses ; free education at all stages in all educational
institutions; and generous stipends for higher and specialized education, both
in India and abroad. Like Ambedkar, Jagjivan Ram also pleaded for the
establishment of an independent Minorities Commission to deal with the
welfare of minorities and to examine all cases of infringement of their rights,
privileges and facilities. He suggested that the guarantee of religious and
cultural freedom to racial and religious minorities should be a permanent

^Select Documents 11, 8(i), pp. 330-6. •

750

FRAMING OF INDIA’S CONSTITUTION

feature of the Constitution ; but the special provisions regarding Scheduled
Castes could be eliminated when untouchabUity itself was totally eliminated;
when all Hindu temples were open to all the castes in Hindu so'ciety ; when
wata: or the food of one caste was not considered “polluted” by the touch
of any other caste; and Hindus of all castes could participate in all religious
and social functions. Any resolution for the abolition of any of the safeguards
for Scheduled Castes would require in its favour a two-thirds majority of
all the members of the Scheduled Castes in all Assemblies of the units, and
a similar two-thirds majority in the Union Legislature.

Other suggestions for safeguards for the Scheduled Castes were contained
in a memorandum sent by the All-India Adi Hindu Depressed Classes
Association and in the reply of H. J. Khandekar’, a member of the Minorities
Sub-Committee. The Depressed Classes Association formulated a long list
of measures for the uplift of the Scheduled Castes; in particular it claimed
reservation of seats in the various Legislatures in proportion to their
population and asked that either elections to these reserved seats should
be through separate electorates, or, if the principle of joint electorates was
adopted, every candidate should, before he was declared elected, secure at
least 40 per cent of the votes polled by members of the Scheduled Castes.
Khandekar also gave a long list of general and specific suggestions, mainly
on the lines of the proposals made by Jagjivan Ram; his main claim was
that Scheduled Castes being in terms of population equal to Muslims, the
reservation of seats in the Legislatures, Ministries, judiciary and the public
services should not be less favourable than the representation given to
Muslims, lire safeguards provided that all concessions and privileges
given to minority communities should be effective for a period of
thirty years, after which the communities should be consulted as regards
their modification.

At this stage, the Muslim League was not participating in the proceedings
of the Assembly; and no memorandum on behalf of the Muslim community
was presented.

Ujjal Singh and Hamam Singh, two members of the Minorities Sub-
committee, presented a detailed memorandum* setting out the safeguards
to be provided for the Sikhs. The primary point made in this memorandum
was that the Punjab must remain the “homeland and holy land of the Sikhs”
in siate of the communal disturbances which were at that time taking place
in that Province. The suggestion was also made that the Punjab should be
divided into two separate autonomous units ; or if this was not possible imder
the Cabinet Mission’s proposal of May, 1946, that it should be divided into
two sub-provinces— North-West and South-East Punjab each with its own
Legislature and Cabinet. Affairs of joint concern were to be dealt with

^Select Documents II, 8(ii) (c), pp. 381-3.

2/Wd., II, 8(i) (e), pp. 324-8.

VWd., II, 8(i) (g), pp. 362-70.

MINORITIES

751

by a joint Legislature comprising an equal number of members elected by
each sub-provincial Legislature. The Sikhs were to be given weightage in
this joint Legislature on the same lines as would be adopted for Muslims
in the Central Legislature; likewise a 25 per cent representation was to be
given to Sikhs in the joint Cabinet. The Cabinets were to be chosen on the
Swiss model. Legislatures and Cabinets having the same fixed term of
oflfice. The memorandum mentioned the North-West Frontier Province,
Baluchistan and the United Provinces as the other Provinces in which Sikhs
were interested ; and it suggested the appointment of a Sikh member in the
Cabinets of the first two and a Minister for smaller ininorities in the United
Provinces. The reservation of posts in the services— 25 per cent in the Punjab
and 10 per cent in the United Provinces — was another proposal. . The
memorandum asked among other things for economic and social safeguards,
a guarantee of religious rights — ^including the right to wear kirpans and
prepare and use jhatka^ meat. The memorandum also sought a guarantee
of the right to employ the Punjabi language for the conduct of legislative
and administrative business in the Punjab.

One of the demands outlined in the memorandum was that three backward
classes among the Sikhs — ^known as Mazhabis, Ramdasias and Kabirpanthis
— should be provided with the same special educational facilities and
reservations in the public services that were provided for Scheduled Castes
and aboriginal tribes. There were other proposals for political safeguards
for Sikhs at the Centre. Mainly, these were that 6 per cent of the seats in
the Central Legislature should be reserved for the Sikhs; that at least one
Sikh should always be a member of the Central Cabinet; that 5 per cent of
posts in the Central Services should be reserved for Sikhs; and that in the
defence services the proportion of Sikhs should not be lower than what they
already enjoyed.

Memoranda were also submitted on behalf of the smaller minorities. Two
were submitted on behalf of the Anglo-Indians, one by Frank Anthony and
one by S. H. Prater’. The needs of this small community, which had adopted
western ways and standards of living, were three-fold. First they wanted
a guarantee as a fundamental right of facilities to receive education in English
for the Anglo-Indians. As a corollary to this demand, they wanted the liberal
educational grants secured for Anglo-Indian and European Schools by the
Government of India Act, 1935, to be not only continued, but increased in
relation to their requirements. Thirdly, special provision should be made
in the Constitution for securing for them a preferential claim to a percentage
of appointments in the Railways, in the Customs and in the Posts and
Telegraphs Departments, in view of the fact that in the past members of the
community were dependent on the public services, particularly in these

'The Sikhs eat only jhatka meat i.e., meat of an animal killed outright with one
blow.

^Select Documents II, S(i^ (0 & (/), pp. 343-61..

752

FRAMING OF INDIA’S CONSTITUTION

departments, for their existence, and any sudden upsets would seriously
prejudice the community’s economy.

Regarding political safeguards, Frank Anthony suggested that Anglo-
Indians should be given increased representation in the Central Legislature.
They were already represented in the Legislative Assemblies of Madras,
Bombay, Bengal and blie United Provinces; he suggested an extension of such
representation to Sind, Assam and Orissa. Prater asked for representation
in all Provincial Legislatures. Both of them wanted an Anglo-Indian to be
included in the Central Cabinet.

R. N. Brahma, a member from Assam, wanted safeguards for those tribal
people in Assam who had left the tribal regions and had settled down in the
plains’. These persons spoke their own dialects and the majority of them
followed their tribal forms of religion and worship; and, according to him,
they could be grouped together and given representation in the Central and
Provincial Legislatures on a population basis, and a due share of posts in
the public services. It was also suggested that three seats in the Assam
Cabinet should be reserved for them. These tribals were backward people
in relation to the rest of the population and he wanted special provision for
their educational and cultural development and special machinery set up in
the form of a board or a committee to advise and look after the education
of these tribal people. Another proposal was that special statutory provision
should be made to protect them from exploitation and particularly the
I^cvention of alienation of their lands; and reservation of sufficient land
for the considerable proportion of landless tribal people in the plains districts
of Assam. '

No specific communal demands were put forward on behalf of Indian
Christians. Homi Mody, on behalf of the Parsis, said that his community
had never asked for any special privileges, but their position was that if
other minorities were accorded special representation anywhere, the Parsis
should also receive treatment at least equal to that given to one of the smaller
minorities’. His view, however, was that there could not be such a thing
as a political safeguard of any value for a minority; what the minorities
wanted was political opportunity, and such opportunity would have to be
given by way of minimum representation in the Legislatures and the
executive.

Ra'jkumari Amrit Kaur was against safeguards of any kind’. She said :
Privileges and safeguards really weaken those that demand them...
Axiomatieally there is no reason why the interests of any individual or
community should not be safe in the hands of a good person or persons,
irrespective of their personal religion.

In view of the tense communal atmosfffiere prevailing in India, however.

'ye/ecr DocK/nentj II, 8(i) (in), pp. 370-3. •

yw., II, 8(i) (d), pp. 322-4.

II, 8(i) (a), pp. 309-12. ,

MINORITIES

753

she felt that some steps were necessary to inspire confidence in the
minorities ; the two concrete suggestions she made were the setting up of
a special tribunal to decide what a communal issue was : and when a
communal issue arose, a board (in which no community would have more
than one vote) could veto by a majority any measure which it felt was not
for the public good.

Syama Prasad Mookerjee and Jairamdas Daulatram in their memoranda'
detailed the fundamental rights which they thought would be necessary for
the protection of minority rights. The former suggested the setting up in
each Province of a Minorities Commission, consisting of the representatives
of minorities, to advise on the protection of minority interests. Jairamdas
Daulatram favoured the setting up of a minority protection court, nominated
by the Chief Justice of the Supreme Court, to adjudicate on complaints
by minorities of unfair treatment. Mookerjee suggested reservation of scats
in Legislatures for important minorities: and both of them sought the
inclusion of representatives of minority communities in the various
Ministries.

K. T. Shah' focussed attention on the growth of religious minorities in
India. The continuance of separate electorates had led to the evolution
of political parties on religious lines rather than on economic or political
ideals. The rights of communities based on religion or race would have
to be defined with some care and precision, so as not only to meet all the
just demands for safeguarding their religion and culture, but also to prevent
any abuse of the rights guaranteed to minorities as against the rest of the
community. The rights of minorities were not the obligations of the majority
alone, but rather the guarantees of tlie entire community.

M. Ruthnaswamy’ argued that the tendency of a majority vyould be to
make little of the rights and liberties of a minority. For national religions
and cultural minorities (in which category he included Muslims, Sikhs, Indian
Christians and Anglo-Indians), he thought that there should be a two-fold
safeguard. They should be allowed to profess, preach and propagate their
religion; and adequate provision should be made for the promotion of. their
religious and secular culture. This provision should include grants-in-aid
to schools and other educational institutions maintained by these religious
communities; special grants for the promotion of education of backward
minorities; and the provision by the State of schools for minority communities
where their religion and culture would be taught. He also advocated
representation of such minorities in the Central, Provincial and State
Ministries and all departments of the administration according to population.
In order to ensure that these safeguards were effective he proposed that they
should be placed under the protection of the Federal Court; he ihor.ght that

'Select Documents II, 8(i) (h) and (k), pp. 336-43, 361-2.

^Ibid., II, 8(ii) (b), pp. 377-81.

^Ibid: II, 8(i) (b), pp 312-8.

754

FRAMING OF INDIA’S CONSTITUTION

on account of the high prestige for impartiality enjoyed by courts of law in
India, minorities like individuals would find in them the best defence of
their rights and liberties, and in order that this federal justice might be
easily available and accessible he suggested the widespread establishment of
local units of the Federal Court in every Province, large State and in groups
of small States.

It was against the background of these divergent views that the Minorities
Sub-Committee met on April 17, 18 and 19, 1947, to consider this important
matter'. At these meetings the sub-committee considered the interim
proposals of the Fundamental Rights Sub-Committee in so far as these had
a bearing on minority rights. These discussions covered such important
matters as the prohibition of discrimination on grounds of race, religion, caste,
etc.; the abolition of untouchability and the mandatory requirement that the
enforcement of any disability arising out of untouchability should be made
an offence punishable according to law; freedom to profess, practise and
propagate one’s religion; the right to establish and maintain institutions for
religious and charitable purposes; the right to be governed by one’s personal
iaw; the right to use one’s mother-tongue and establish denominational,
communal or language schools, etc.*

Having dealt with the question of fundamental rights for minorities, the
Minorities Sub-Committee met again on July 21, 1947, to consider the
political safeguards for minorities and their representation in the public
services. By this time the question of partition had been decided and the
Muslim League was also represented in the sub-committee. The issues for
the consideration of the sub-committee were formulated as follows:

(1) Representation in the Legislatures ; joint vs separate electorates and
weightage ;

(2) reservation of seats in the Cabinets ;

(3) reservation in public services ;

(4) administrative machinery to ensure protection of minority rights partly
covered by making certain fundamental rights justiciable®.

Discussions on these issues continued till July 27. Unanimous decision
could not be reached on many points, and in fact the voting on several items
was very close. On some points the voting was equal and where voting
was equal, the Chairman of the sub-committee did not consider it necessary
to exercise his casting vote, since in any case these matters were
to be discussed by the Advisory Committee. The report of the
sub-committee submitted on July 27 contained only a summary of
the conclusions of the committee and also mentioned the result of the
vote on each issue*.

‘Minutes. Select Documents 11, 5, pp. 199-207.

^See Chapter on Fundamental Rights.

“Minorities Sub-Committee, Minutes, Select Documents II, 9(ii), p. 392.

* Select Documents II, 10(i), pp. 396-400.

MINORITIES

755

The sub-committee decided by a large majority against separate communal
electorates for elections to the Legislatures. It was understood that in
arriving at this decision, it was open to the sub-committee to express its
preference for any one of several forms of joint electorates that could be
devised. But the sub-committee chose not to make any such recommendation.

On the issue of the reservation of seats for minorities in the Legislatures,
the sub-committee decided, again by a large majority, and as a general
principle, in favour of reservation of seats for the different recognized
minorities in the various Legislatures; and such reservations would initially
be for a period of ten years, the position to be reconsidered at the end of
the period.

The sub-committee then proceeded to consider what minorities and in
which Provinces were to be given the right of reserved seats. For this
purpose, the “recognized” minorities were divided into three groups; Anglo-
Indians, Parsis and the tribesmen living in the plains of Assam, these
communities being minorities having less than \ per cent population in the
Indian Dominion; Indian Christians and Sikhs, being minorities having a
population of not more than IJ per cent; Muslims and Scheduled Castes, being
minorities having a population exceeding IJ per cent.

The question of representation in the Central and Provincial Legislatures
for Parsis and Anglo-Indians was deferred for later consideration by the
Advisory Committee.

The representatives of the Indian Christians were prepared to accept
reservations proportionate to their population in the Central Legislature and
in the Provincial Legislatures of Madras, Bombay, Assam and East Punjab,
where the Indian Christian population was sufficiently numerous to give them
separate seats. In the other Provinces, they were content with seeking election
for the general seats. They were opposed on principle to weightage being
given to any community, but if it was conceded to Sikhs, Muslims and the
Scheduled Castes, the Indian Christians would also demand the same
privilege. The Christians’ position was accepted by the sub-committee. The
sub-committee also decided not to give weightage to any of the minorities.
So far as the Sikhs were concerned, consideration of safeguards was deferred
in view of the uncertain position in East Punjab then prevailing owing to
the mass displacement of population taking place.

The sub-committee decided to refer to the Advisory Committee a proposal
that a minority candidate standing for election for a reserved seat should poll
a minimum number of votes of his own community before he was declared
elected. It was, however, accepted that a member of a minority community
which had reserved seats could also contest the unreserved seats.

Ambedkar had an interesting suggestion to make ; the candidates belonging
to a majority community should, before being declared elected, poll a
minimum number of votes from among the minority communities in their
constituencies. This would have amounted to a minority exercising a sort

756

FRAMING OF INDIA’S CONSTITUTION

o£ veto on the majority communities and none except Ambedkar himself
was in favour of the proposal.

On the reservation of seats for minorities in the Cabinets, voting was
close. The sub-committee accepted by eight votes to seven K. M. Munshi’s
proposal that there should be no statutory provision: but it supported the
adoption of a convention on the lines of paragraph VIT of the Instrument
of Instructions issued to the Governors of Provinces under the 1935 Act.
This was to be provided in a schedule to the Constitution.

On the reservation of places in the public services, it was agreed that
there should be such reservation for the Scheduled Castes, Muslims, the plains
tribesmen and Anglo-Indians. The Indian Christians and the Parsis, however,
did not want any reservation. The question of reservation in. the services
for posts for which competitive examinations were held was separately
considered. Reservation was favoured for the Scheduled Castes but not
for Muslims. Sikhs and the tribesmen. The Anglo-Indians did not want
reservation in services of this category, nor the Parsis and Indian Christians,
who sought no reservation in any services, whether by competition or
otherwise. Voting took place on a resolution proposed by Ali Zaheer which
provided that in making appointments the Provincial and the Central
Governments should keep in view the claims of aU minorities, consistently
with the consideration of efficiency of administration. There were nine votes
in favour, and nine against this proposal.

The setting up of a competent and impartial administrative machinery to
ensure protection of minority rights was a matter on which great stress was
laid; the sub-committee accepted Ambedkar’s proposal for an independent
officer being appointed by the President at the Centre and by the Governors
m the Provinces, to report to the Union and Provincial Legislatures
respectively, on the working of the minorities’ safeguards. The committee
■also accepted K. M. Munshi’s proposal that there should be provision
enabling the setting up a commission for a periodic investigation into the
conditions of socially and educationally backward classes.

Rajkumari Amrit Kaur was opposed both to reservation and to weightage
for any community. In her minute of dissent she held that anything in the
nature of privileges for any special class or section of society was wrong in
principle; and when it was given on the ground of religion, it was doubly
wrong, for all religions stood for the brotherhood of man and none for
separatism. Moreover, such reservations and special privileges would

'“In making appointments to his Council of Ministers Our Governor shall use his
best endeavours to select his Ministers in the following manner, that is to say, in
consultation with the person who in his judgment is likely to command a stable
majority in the. Legislature, to appoint those persons (including so far as practicable
members of important minority communities) who will best be in a position collectively
to command the confidence of the Legislature. But, in so acting, he shall bear cons-
tantly in mind the need for fostering a sense of joint responsibility among his Ministers.’l

MINORITIES

757

militate against the declared objective of the Indian Union, which was to
establish a classless society. Special privileges and protection, she feared,
would lead to the fragmentation of the Indian nation.

On the. other hand, H. J. Khandekar, in his note of dissent, strongly
emphasized the need for statutory provisions for the reservation of seats in
the Central and Provincial Cabinets for the Scheduled Castes. The condition
of other minorities was different from that of the Scheduled Castes, who
deserved special treatment in this matter.

The report of the Minorities Sub-Committee was discussed by the Advisory
Committee for four days, from July 28 to 31*. Khaliquzzaman, a
prominent Muslim League leader, put forward the suggestion that the
question of safeguards for minorities should be decided by a small committee
of persons belonging to the majority community authorized by the Congress
High Command to take decisions. He thought that this would be a better
procedure than discussion in a sub-committee. The proposal was however
not accepted. '

The general attitude of the Advisory Committee on the question of
constitutional safeguards was set out as follows in its report;

We have felt bound to reject some of the proposals placed before us
partly because as in the case of reservation of seats in Cabinets, we
felt that a rigid constitutional provision would have made parliamentary
democracy unworkable and partly because, as in the case of the electoral
arrangements, we considered it necessary to harmonize the special claims
of minorities with the development of a healthy national life. We wish
to make it clear, however^ that our general approach to the whole problem
of minorities is that the State should be so run that they should stop
feeling oppressed by the mere fact that they are minorities and that, on
the contrary, they should feel that they have as honourable a part to
play in the national life as any other section of the community. In
particular, we think it is a fundamental duty of the State to take special
steps to bring up those minorities which are backward to the level of
the general community^.

The committee totally rejected separate electorates of any kind, as having
in the past sharpened communal differences and proved to be one of the
main stumbling blocks to the development of a healthy national life. All
elections to Central and provincial Legislatures were to be held on the
basis of joint electorates. In order, however, that the minorities should
not feel apprehensive about the system of unrestricted joint electorates or
the quantum of their representation, the Advisory Committee recommended
as a general rule that seats for the different recognized minorities should
be reserved in the various Legislatures on the basis of their population.

'Minutes, Select Documents 11, II, pp. 403-10.

“Report, August 8, 1947, Select Documents \l, 12(i\ pp. 416-7.

758

FRAMING OF INDU’S CONSTITUTION

No weightage was to be given to any community, but members of a minority
community would be entitled to contest unreserved seats, in addition to the
seats reserved for them. The committee was also opposed to any kind of
cumulative voting or to any requirement that a member of a minority
community contesting a reserved seat should poll a minimum number of
votes of his own community. In their view a combination of these two
would have all the evil effects of separate electorates.

Dealing with the quantum of representation to be given to individual
minority communities, the committee recommended that Muslims and
Scheduled Castes should get reserved seats in proportion to their population;
Indian Christians accepted reservation of seats in accordance with the
population in the Centre and in Madras and Bombay; the Parsis withdrew
their claim for any kind of statutory reservation; so far as the Anglo-Indian
community was concerned, after much discussion, the representatives of this
community were persuaded to withdraw claims for any statutory reservation
of seats in the Legislatures, on the understanding that the President of the
Union and the Governors of Provinces would have the power to nominate their
representatives if they failed to secure any representation as a result of
the general elections. The consideration of safeguards for the Sikh
community was postponed ; so was the case of tribesmen living in the plains
of Assam, pending the report of the committee on the tribal areas and
excluded and partially excluded areas of Assam.

On the representation of minorities in Cabinets, the committee accepted
the view of the Minorities Sub-Committee that there should be no statutory
provision for such reservation, but that a convention on the lines of the
Instrument of Instructions to the Governor-General under the Government
of India Act, 1935, could be provided in a schedule to the Constitution.

The committee also decided against any specific provisions for reservation
of appointments in the public services; and it was in favour of a general
provision on the lines suggested by Ali Zaheer that in the all-India and
provincial services, the claims of minorities should be kept in view
consistently with the efiSciency of administration. When this matter was
discussed in the Advisory Committee, Khaliqumman wanted that
reservation of appointments in the public services should be provided for ali
minorities on a population basis; and Ambedkar pressed die case of the
Scheduled Castes for separate treatment and the reservation of posts for
them on a population basis. Neither of these proposals was accepted by
the committee.

The committee decided however to consider the case of the Anglo-Indians
for special treatment, because of the complete dependence cff the economy
of the community on its position in certain services. A sub-committee was
appointed to consider this matter and it reported on August 22, 1947‘, that

'^Select Documents H, 12(ii), pp. 419-21.

MINORITIES

759

the whole economy of the Anglo-Indian community was dependent on their
finding employment in certain types of posts in the Railways, the Posts and
Telegraphs and the Customs Departments. A survey made in Bombay had
shown that 76 per cent of the employable section of the community was
dependent for livelihood on these appointments and in the opinion of the
sub-committee the position elsewhere was substantially similar. The special
reservation given by the Government of India Act, 1935, extended only to
certain categories of posts in these departments. If these safeguards were
not continued for some years, the Anglo-Indian community would be subjected
to a sudden economic strain which it might not be able to bear. The
sub-committee recommended that the reservation of appointments enjoyed
by the Anglo-Indians in these services should be continued for the time being
but reduced gradually and cease to exist after ten years.

The sub-committee also reported that special educational grants totalling
four and a half million rupees were being made to about 500 Anglo-Indian
schools in India. A sudden reduction in this grant would seriously dislocate
the economy of these schools. It was therefore recommended that the special
assistance given to these schools would be reduced gradually over a period
of ten years; thereafter they would be treated in the same manner as other
similar schools.

The Advisory Committee accepted these recommendations and included
them in a supplementary report which was submitted to the President of
the Assembly on August 25, 1947*.

The Advisory Committee came to the conclusion that the best machinery
for ensuring the implementation of the guarantees and safeguards provided
for the minorities in the Constitution was for the Central and each of the
units to appoint a special Minority Officer charged with the duty of enquiring
into allegations of infringement of safeguards and of reporting to Parliament
or the appropriate Legislature.

The committee also accepted the recommendations of the Minorities Sub-
Committee in favour of a provision to set up a statutory commission, the
scope of whose inquiry would be much wider than the safeguards of the
recognized minorities. The Advisory Committee thought that it was the
primary duty of the State to take special steps to bring up those sections of
minorities which were backward to the level of the general community.
The commission proposed was to investigate into the conditions of all
“socially and educationally backward classes”, to study the difficulties under
which they laboured and recommend the steps to eliminate these difficulties
and the finances to be provided for the purpose.

The reports of the Advisory Committee on minority rights and on Anglo-
Indians were considered by the Constituent Assembly on August 27 and 28.
Introducing the report on the minority rights Vallabhbhai Patel described

'■Select Documents H, 126ii), pp. 421-2.

760

FRAMING OF INDIA’S CONSTITUTION

the report as “the result of a general consensus of opinion between the
minorities themselves and the majority’”.

The Assembly adopted all the recommendations of the committee without
any modification. Discussion mainly centred round the issue of joint or
separate electorates. B. Pocket, a Muslim Leaguer from South India, moved
an amendment for continuing separate electorates for the Muslim community,
with the support of Khaliquzzaman. Govind Ballabh Pant strongly opposed
the proposal as suicidal for the minorities themselves. He warned them;

If you have separate electorates for the minorities, the inevitable result is
that the majority becomes isolated from the minorities, and being thus
cut off from the minorities, it can ride roughshod upon theml

Commenting on the attitude of the Muslim League Vallabhbhai Patel, the
Chairman of the Advisory Committee, said :

When I agreed to reservation on the population basis, I thought that our
friends of the Muslim League would see the reasonableness' of our
attitude and accommodate themselves to the changed conditions after the
separation of the country. But I now find them adopting the same
methods which were adopted when separate electorates were first introduced
in this country, and in spite of ample sweetness in the language used there
is a full dose of poison in the method adopted’.

The amendment was rejected by the Assembly.

The Constituent Assembly was meeting at a time when the effect of the
Radcliffe Award on the population structure of the Provinces of East Punjab
and West Bengal could not be accurately gauged, because of a large-scale
migration of populations taking place across the frontiers of East Punjab and
West Bengal. The Assembly accordingly decided to postpone consideration
of minority rights in the political field to be provided in the Constitution
for the Sikhs and other minorities in East Punjab. The Assembly also
agreed to the suggestion of the representatives of West Bengal to postpone
consideration of the proposal that members of minority communities in that
Province would have the right to contest general seats in addition to the
seats reserved for them on their population strength.

The Scheduled Castes were always considered to be that section of the
Hindu community which was subject to certain social disabilities like
untouchability; and K. M. Munshi moved an amendment which described
the Scheduled Castes as a “section of the Hindu community”. This was
accepted (but subsequently modified as certain Sikh communities were also
included as Scheduled Castes).

Another attempt was made during the discussion of the report to introduce
the principle of separate communal voting. S. Nagappa on behalf of the
Scheduled Castes moved an amendment that a candidate from that community

'C. A. Deb.. VoL V. p. 212.

^bid: p. 244.

’•Ibid., p. 296.

• »

MINORITIES

761

should, before being declared elected to a reserved seat, be required to poll
35 per cent of the votes polled by the community*; and a similar amendnient
was moved in respect of all minorities by K. T. M. Ibrahim^. Vallabhbhai
Patel was severely critical of this suggestion; he saw in the amendment a
further attempt at sowing the seeds of communal disruption and categorically
refused to accept the amendment’. The amendment was rejected by the
Assembly.

These decisions of the Constituent Assembly were incorporated in the
Draft Constitution prepared by the Constitutional Adviser. Meanwhile the
North-East Frontier (Assam) Tribal and Excluded Areas Sub-Committee
submitted its report on July 28, 1947, while the Excluded and Partially
Excluded Areas (other than Assam) Sub-Committee submitted an interim
report on August 18 and a second report on September 25*. . By their terms
of reference these two sub-committees were required to draw up schemes
of administration for the tribal areas as well as for the, excluded and
partially excluded areas. As they proceeded with their labours, the two
sub-committees found that a considerable proportion of the tribal and
aboriginal population lived outside these areas. Thus in Assam the total
tribal population according to the census of 1941 was about 2^ millibn, but
of these 64 per cent lived in the plains. '

In the same way the Sub-Committee on Excluded and Partially Excluded
Areas in Provinces other than Assam also found a considerable proportion
of the tribal population inhabiting regions outside these areas.

The problem of the tribal and excluded areas as such did not adequately
cover the backwardness of the tribal people and the task of the two
committees became somewhat complicated in consequence. The Assam
Sub-Committee recommended that the areas where the tribes predominated
should be divided into autonomous districts and regions and considerable
administrative and judicial powers given to local councils set up in these
areas. But apart from the recommendations for the administration of these
areas, the committee had important suggestions to make regarding the uplift
of the tribal population and their participation in the political life of the
Province and the country. It suggested that the excluded areas in Assam
(other than the frontier tracts) should be enfranchised on the basis of adult
suffrage. Joint electorates were recommended, but the constituencies were
to be confined to the autonomous districts, and persons other than those
belonging to the hill tribes were to be debarred from standing for election
from these constituencies. Weightage was not considered necessary, but
the hill districts could be represented in a proportion not less than what
was due on the basis of population, even if this involved a certain weightage

'C. A. Deb., Vol. V, p. 284.

^Ibid., p. 285.

nbid., pp. 297-8.

'Select Documents III, 7, pp, 681-782.

762

FRAMING OF INDU’S CONSTITUTION

in rounding off. For the tribal population in the plains districts, the
recommendation was that they should for all practical purposes be treated
as a minority.

The Assam Sub-Committee also recommended that representation for the
hills in the Ministry should be guaranteed by statutory provision if possible.
The hill areas contained close on a million persons and the sub-committee
thought that it would be wise for any Ministry to make a point of having
at least one colleague from the hill areas. If specific provision in the
Constitution was not possible the sub-committee suggested a suitable
instruction being given in the In s trument of Instructions to the Governor.
The sub-committee observed that since the development of the hill
areas was a matter requiring special attention, the Governor should be
in a position to appoint a special Minister if necessary from among the
hill people.

The sub-committee also emphasized the need for associating the hill
people with the administration and suggested recruitment of a due proportion
of hill people to the public services. Finally the sub-committee made special
recommendations for the development of the hill areas. It proposed that
the deficit in the ordinary administration of these areas should be made good
by the Centre on the basis of the annual average deficit for the past three
years; and in addition the cost of development schemes should also be met
from the Central exchequer’.

The sub-committee charged with the duty of considering the excluded
and partially excluded areas outside Assam had a different plan. It suggested
the setting up of Tribal Councils to advise on matters relating to the
administration of these areas, which were to be called Scheduled Areas. But
in addition the committee proposed that the tribal and aboriginal people
as a whole should be treated as a minority community and accorded special
representation in the Legislatures with reserved seats in proportion to their
population in the same manner as the Scheduled Castes, through joint
electorates. The sub-committee also suggested reservation of appointments
in the public services.

Even more important perhaps were the two recommendations made by the
sub-committee for securing continuous attention to the uplift of the aboriginal
population, both in the Scheduled Areas and outside. In its view, the
provision of roads, schools, medical facilities and other “dire needs” would
involve a heavy outlay of funds and consequently assistance from the Centre
would be inevitable. The sub-committee therefore suggested that statutory
provision should be made giving power to the Caatral Government to require
the Provincial Governments to draw up schemes for the welfare and
development of backward areas and tribals; and that the Centre should

^Select Documents 111, 7. pp. 683-733. The administrative arrangements in these
areas are dealt with in the Chapter on Scheduled and Tribal Areas.

MINORITIES

763

contribute the funds for the execution of such schemes. As a necessary
corollary to this power, the sub-committee also recommended to the Central
Government to institute at any time a special Commission to enquire into
the progress of plans of development and into the conditions of the Scheduled
Areas and tribals in generar.

At the time the reports of these two sub-committees were received the
stage had already been reached of the Constitution being drafted. Their
recommendations were incorporated in the Draft Constitution, first by the
Constitutional Adviser and thereafter by the Drafting Committee.

The Draft Constitution prepared by the Constitutional Adviser in October
1947 incorporated the decisions of the Constituent Assembly on the problem
of minorities: it also included provisions to give effect to the recommendations
of the two sub-committees on tribes— the sub-committee on tribal and
excluded and partially excluded areas in Assam and the sub-committee on
excluded and partially excluded areas in Provinces other than Assam. Since
these recommendations related to a variety of matters, they were not all
placed together but formulated in various parts of the Draft Constitution’.
In the sections relating to Parliament and the State Legislatures was included
the provision for the reservation of seats for Muslims, the Scheduled Castes,
the Scheduled Tribes and Indian Christians; also another enabling the
President and the Governors to nominate Anglo-Indians to Parliament and
the State Legislatures in case they considered that this community was not
adequately represented. The Instrument of Instructions to the Governors
included in the Fifth Schedule of the Draft Constitution contained a direction
to them to include as far as possible minority community representatives in
their Councils of Ministers. The other decisions of the Assembly on
minorities were included in a “Miscellaneous” Part (Part XII) which contained
five clauses relating to minorities : clause 226, which stated in general terms
that in making appointments the Provincial and Central Governments should
keep in view the claims of all minorities, consistently with the consideration
of efficiency of the administration ; clauses 227 and 228 which made
temporary provision for the recruitment of Anglo-Indians to certain classes
of posts in the Railways, Customs and Posts and Telegraphs Departments,
and for the continuance for a period of three years of the special grants
made to Anglo-Indian schools; clause 229 which provided for the creation of
special officers in the Central and the Provinces for looking after the welfare
of the minorities; and clause 230, which empowered the President to set up
a Commi^ion to investigate the conditions of backward classes. A clause
was also included in the chapter on the admmistrative relations between the
Federation and the units empowering the Central Government to direct the
units to draw up schemes for the welfare of the Scheduled Areas and

^Select Documents 111,1, pp-

^Select Documents m, l{i), pp. 22, 80-1, 95-6, 160-74.

764

FRAMING OF INDU’S CONSTITUTION

Scheduled Tribes and to exercise control over the execution of these schemes
(clause 194).

These provisions were considered by the Drafting Committee on February
5 and 6. 1948'. The committee accepted all these provisions in substance
but made some rearrangement of the articles. The Draft Constitution settled
by this committee and published in February 1948 contained a special part
(Part XIV) under the title “Special Provisions relating to Minorities’”. This
part contained ten articles setting out in detail and with meticulous care the
decisions taken by the Constituent Assembly on minorities and the
recommendations of the two sub-committees on tribal people (articles 292
to 301). Article 292 reserved seats in the House of the People for Muslims,
the Scheduled Castes, the Scheduled Tribes and in the States of Madras and
Bombay for Indian Christians, in proportion to the population of these
communities. Article 294 laid down a similar reservation for these
communities in the Legislative Assemblies of Part I States — corresponding
to the Provinces of the Dominion.

In addition, seats in the Assam Legislative Assembly were also to be
reserved for the autonomous districts of that State. Article 293 gave power
to the President to nominate not more than two members of the Anglo-
Indian community to the House of the People if he felt that it was not
adequately represented. Article 295 contained a similar provision in relation
to the State Legislatures. Article 296 required that, consistently with the
maintenance of efficiency of administration, the claims of the minority
communities should be taken into consideration in the making of appointments
to public services and posts. Article 297 continued in force the reservation
of posts for Anglo-Indians in the Railways, Customs and Posts and Telegraphs
Services of the Union on the same basis as immediately before August 15,
1947. The article also made detailed provision for the gradual extinction of
this special right after a period of ten years, when “all such reservations shall
cease”. Article 298 made elaborate provision regarding Government grants
for the benefit of the Anglo-Indian community in respect of education. These
grants were to continue during the first three years from the commencement
of the Constitution on the same scale as the grants made during the financial
year 1947-48. Thereafter it was permissible to reduce the amounts of these
grants by ten per cent for every three year period. At the end of ten years,
it was laid down, these grants, to the extent to which they were a special
concession to the Anglo-Indian community, would cease. Article 299 provided
for the appointment of a Special Officer for Minorities for the Union and
one for each State,, who would be charged with the duty of investigating
all matters relating to the safeguards provided by the Constitution and
required to make periodic reports to the respective Governments. These

'Minutes, Select Documents III, 5, pp. 474, 481.

^Select Documents III, 6, pp. 630-4.

MINORITIES 765

reports were to be placed before the appropriate Legislatures.

Article 300 empowered the President to appoint at any time a Commission
to report on the administration of the Scheduled Areas and the welfare of
the Scheduled Tribes. The appointment of such a Commission was made
mandatory: on the expiry of ten years from the commencement of the
Constitution. The article also gave power to the Union Government to
give directions to the States as to the drawing up and execution of schemes
for the welfare of the Scheduled Tribes; this power was linked with the
provision in article 255 making it mandatory that the capital and the
recurring expenditure on the implementation of such schemes should be paid
out of the revenues of the Union in the form of grants-in-aid. Article 301
empowered the President to appoint a Commission to investigate the
conditions of all socially and educationally backward classes within .the
territory of India and the difficulties under which they laboured, to suggest
remedial steps and make recommendations as to the grants to be made by
the Union for the purpose and the conditions subject to which such grants
should be given.

The direction contained in the Instrument of Instructions requiring
Governors to include in their Cabinets members of important minority
communities, so far as this might be practicable, was retained; and a
provision was also made that there should be a Minister in charge of tribal
welfare in Bihar, the Central Provinces and in Orissa (article .144),

The Scheduled Castes were defined as including such castes, races or
tribes or parts of or groups within castes, races or tribes as were recognized
as such under the Government of India Act, 1935 ; and the Scheduled Tribes
were listed in the Eighth Schedule to the Draft Constitution.

One important feature of the discussions up to this stage was that they
were confined to the Provinces of the Dominion of India and did not include
any of the Indian States. This was due purely to historical reasons. The
constitutional protection under the Government of India Act, 1935, was
enjoyed by the minorities in British India : and the excluded and partially
excluded areas were features of that Act. All the enquiries by the Advisory
Committee on Fundamental Rights, Minorities and Tribal and Excluded
Areas and its sub-committees were confined territorially to the Provinces of
what was formerly Britkh India which became, on the transfer of power, the
Dominion of India. The Indian States had their own minority problems
as well as their problems of backward areas and backward tribes, but the
committees of the Constituent Assembly made no effort to tackle these
problems. This, in the circumstances, was inevitable, because at this stage
there was a clear understanding that the Constituent Assembly would not
concern itself with the intemal constitutions of the Indian States. T^^
Drafting Committee contented itself with the following observation :

Safeguards for Minorities: The draft embodies the decisions of the
Constituent Assembly and of the Advisory Committee in respect of the

766

FRAMING OF INDIA’S CONSTITUTION

reservation of seats in tlie Legislatures and of posts in the public services.
Although these provisions do not extend to the Indian States, nevertheless,
in the larger interests of India, the Indian States should adopt similar
provisions for the minorities therein.

The Draft Constitution of February 1948 was incomplete in another
important respect. The position of the Provinces of East Punjab and West
Bengal was uncertain on account of the large scale uprooting of people
following the partition of India. Mainly because of this reason no decisions
were taken on the minorities issues as they applied to these Provinces. The
important question of safeguards for the Sikhs thus still remained to be
discussed. A meeting of the Advisory Committee was held on February
24, 1948, to consider the position of the Sikhs, the rights of minorities in
East Punjab and the reservation of seats in the Legislature for minorities
in West Bengal. The committee accepted a suggestion made by Ambedkar
that in order to come to a satisfactory and expeditious decision a small
committee should be appointed where the whole matter might be thrashed
out*.

This committee consisted of Vallabhbhai Patel, Jawaharlal Nehru,
Rajendra Prasad, K. M. Munshi and Ambedkar. It did not meet till
November 23, 1948. The Draft Constitution which was presented to the
Assembly on the following day did not therefore contain any provision on
these matters.

Presenting the Draft Constitution to the Assembly, Ambedkar, referring
to the articles on safeguards for minorities, observed :

The Draft Constitution is also criticized because of the safeguards it
provides for minorities. In this, the Drafting Committee has no
responsibility. It follows the decisions of the Constituent Assembly. Speaking
for myself, I have no doubt that the Constituent Assembly has done wisely
in providing such safeguards for minorities as it has done. In this country
both the minorities and the majorities have followed a wrong path.
It is wrong for the majority to deny the existence of minorities.
It is equally wrong for the minorities to perpetuate themselves.
A solution must be found which will serve a double purpose. It must
recognize the existence of the minorities to start with. It must also be
such that it will enable majorities and minorities to merge some day into
one. The solution proposed by the Constituent Assembly is to be welcomed
because it is a solution which serves this two-fold purpose. To diehards
who have developed a kind of fanaticism against minority protection 1
would like to say two things. One is that minorities are an explosive
force which, if it erupts, can blow up the whole fabric of the State. The
history of Europe bears ample and appalling testimony to this fact.
The other is that the minorities in India have agreed to place their

^Select Documents IV, Il(i), p. 590.

MINORITIES

767

existence in the hands of the majority. In the history of negotiations for
preventing the partition of Ireland, Redmond said to Carson, “Ask for
any safeguard you like for the Protestant minority but let us have a
united Ireland”. Carson’s reply was, “Damn your safeguards, we don’t
want to be ruled by you”. No minority in India has taken this stand.
They have loyally accepted the rule of the majority which is basically a
communal majority and not a political majority. It is for the majority
to realize its duty not to discriminate against minorities. Whether the
minorities will continue or will vanish must depend upon this habit of the
majority. The moment the majority loses the habit of discriminating against
the minority, the minorities can have no ground to exist. They will vanish\
The sub-committee to consider the position of the Sikhs and other
minorities in East Punjab and the minorities in West Bengal submitted its
report on November 23, 1948". The most crucial point which the sub-
committee had to examine was the question of safeguards to be given to
the Sikhs. This community had suffered greatly during the communal
disturbances. As the sub-committee observed :

The holocaust in West Punjab has deprived them of many valuable
lives and great material wealth. Moreover, while in these respects the
Hindus suffered equally with the Sikhs, the special tragedy of the Sikhs
was that they had also to abandon many places particularly sacred to
their religion.

The proposal for safeguards for the Sikh community placed before the
sub-committee varied from suggestions that no special constitutional
guarantees were necessary to the “very forthright” demands of the Shiromani
Akali Dal. These demands were summarized by the sub-committee as

follows :

(i) the Sikhs should have the right to elect representatives to the
Legislatures through a purely communal electorate;

(ii) in the Provincial Legislature of East Punjab 50 per cent of the
seats and in the Central Legislature 5 per cent should be reserved for
the Sikhs ;

(iii) seats should be reserved for them in the United Provinces and
Delhi ;

(iv) Scheduled Caste SiMis should have the same privileges as other
Scheduled Castes ; and

(v) there should be statutory reservation of a certain proportion of

• places in the Army. . '

The sub-committee found these demands totally unacceptable, constituting
“a fundamental departure” from the decisions taken by the Assembly in
respect of every other community, including the Scheduled Castes. It was

. JC. A. :DeK Vol. VII, p. 39.

^Select Documents IV, pp. 590-4.

768

FRAMING OF INDIA’S CONSTITUTION

of the opinion that, while the Sikhs were a minority from the point of view
of numbers, they did not . suffer from any of the other handicaiK which
affected the other communities dealt with by the Advisory Committee. It
pointed out:; • .

They are a highly educated and virile community ; with great gifts not
merely as soldiers but as farmers and artisans and with a most remarkable
.spirit of enterprise. There is in fact no field of activity in which they need
fear comparison with any other community in the country, and we have
every, confidence that, with the talents they possess, they wilT soon
reach a level of prosperity which will be the envy of other communities.
. , Moreover, while in the undivided Punjab they were only 14 per cent of the
■ population, they form nearly 30 per cent of the population in East Punjab,
a strength which gives them; in the public life of the Province, a position
. . of considerable authority,

. The sub-committee was in favour of reservation of seats for the Sikhs,
as for other minorities, with joint electorates. It considered the demands of
the Akali Dal to be definitely retrograde— “in principle, precisely those which
the Muslim League demanded for the Muslims and which led to the. tragic
consequences” of partition. It was accordingly recommended that no special
provision should be made for Sikhs other than the general provisions already
approved for other minorities. .

The sub-committee had little difficulty in disposing of the minority problem

in West Bengal. It said : .

. Although on account of the recent exodus from East Bengal, any accurate
estimate of the number of different communities in West Bengal is a
matter of some conjecture, the broad picture is known clearly enough;
and we do not think there are any reasons why the arrangements already
approved by the Assembly for other Provinces should not be applied to
West Bengal,

Two reactions to the recommendations of the sub-committee may be
iheiitioEed'. The Sikh members of the East Punjab Assembly presented a
memorandum in which they made the following claims :

1 . The Sikh backward classes viz. Mazhabis, Kabirpanthis, Ramdasias,
Baurias, Sareras and Sikligars, should be placed on par with Hindu
Scheduled Castes in the matter of political rights,

2. In the matter of language, script; and culture, either zonal

arrangements should be provided in the Constitution or settled
immediately by executive action. ;

3. Sikh minorities outside East Punjab should receive similar treatment

as had been or might be granted to other minorities in the matter
of political rights'. .

In a letter addressed to Vallabhbhai Patel on December 17, 1948, Giani

‘^Select Documents IV, p. 594.

MINORITIES

769

Kartar Singh suggested certain steps whereby, without separate electorates
or weightage, it would be possible to satisfy Sikh feelings. This letter pointed
out that the substance of the report of the sub-committee was based on a
discussion of the demands of the Akali Dal alone; and the more moderate
suggestions made by the Sikh legislators of East Punjab had not been
considered. Giani Kartar Singh laid particular emphasis on three points.
The first was the question of representation of the Sikhs in the Central
and Provincial Cabinets. He referred to a convention which was established
with Vallabhbhai Patel’s approval regarding the composition of the Cabinet
in East Punjab; and he expressed the fear that if this was not mentioned,
there was the danger of an impression gaining ground that the convention
had been dropped. He then referred to the fact that the whole question of
Sikhs throughout India had been entrusted to the sub-committee and wanted
it to be clarified whether the reservation of seats on a population basis
would apply also to Legislatures other than in East Punjab. The third
point raised related to the exclusion of Gurgaon district from East Punjab
and the making of regional arrangements in the matter of education, culture,
language etc. on the basis of the Punjabi-speaking areas and the Hindi-
speaking areas within the Province. He thought that this proposal would
have the additional merit of killing the demand for a linguistic Province*

The report of the sub-committee and the question of minority safeguards
in East Punjab and West Bengal were placed before the Advisory Committee
on December 30, 1948, but consideration of these issues was again
postponed.

At this meeting certain suggestions of a fundamental character on the
question of minority rights were raised. Some members had given notice
of resolutions seeking to do away with reservations for all minorities.
Referring to these notices, Vallabhbhai Patel, the Chairman of the Advisory
Committee, suggested that the movers of such resolutions should confine
their pro|)osals to their own communities, as, in the absence of a general
agreement, it would not be proper to force a minority to give up its right
of separate representation. For example, if Muslims by general agreement
among themselves felt that they did not want any reservation, their views
would be accepted ; but the proposal should come from them and not from
a member of any other community.

Another point was raised by Gopinath Bardoloi from Assam. He wanted
it to be specifically laid down that, so far as Assam was concerned, the
decision of the committee that minorities could contot general seats in
addition to the seats reserved for them should not apply. His reason was
that the population distribution among the various communities of Assam
was such that no community constituted more than 40 per centl

^Select Documents IV, ll(iv), pp. 595-7.

^Minutes, Select Documents, IV, ll(v), pp. 597-8.

770

FRAMING OF INDIA’S CONSTITUTION

All these matters were considered by the Advisory Committee on May 11,
1949, and the recommendations of the committee were communicated to
the President of the Assembly on the same date. Meanwhile there was a
meeting between the Sikh members of the East Punjab Legislative Assembly
and of the Constituent Assembly on May 10, 1949, and the following
proposals were unanimously adopted at this meeting:

(1) The Sikh backward classes, namely, Mazhabis, Kabirpanthis, Ramdasias,
Baurias, Sikiigars etc. should be given the same privileges in regard to
representation in the Legislatures and other political concessions in East
Punjab and PEPSU as may be provided for the Scheduled Castes. For
this purpose, either these classes may be included in the schedule of
Scheduled Castes enumerated in the Draft Constitution or seats may be
reserved for them on a population basis out of the quota reserved for Sikhs.

(2) In East Punjab, seats should be reserved for Sikhs according to
their population with the right to contest additional seats.

(3) In Provinces other than East Punjab and the Centre, the Sikh
minorities where they are entitled to representation on the strength of their
numbers should have seats reserved for them and where adequate
numbers are not returned by election, their strength should be made good
by nomination,

(4) The Sikhs will be prepared to give up reservation in East Punjab if
Sikh and Hindu Scheduled Castes are lumped together and seats reserved
for them on the strength of their population\

The Advisory Committee’s recommendation" recapitulated the previous
decisions on the subject of minority rights and recalled the decision of the
Constituent Assembly that seats were to be reserved in the Union Legislature
for Muslims, Scheduled Castes and Indian Christians ; in all the State
Legislatures for Muslims and Scheduled Castes ; and for Indian Christians
in Madras and Bombay. At the meeting of the committee on December 30,
1948, according to the report, some members felt that conditions having vastly
changed since the Advisory Committee had made its recommendation in 1947,
it was no longer appropriate in the context of free India to reserve seats for
Muslims, Christians, Sikhs or any other religious minority. Although the
abolition of separate electorates had removed much of the poison from the
body politic, the I'eservation of seats for religious communities, it was felt,
would lead to a certain degree of separation and to that extent was contrary
to the conception of a secular democratic State: and some members gave
notice of resolutions to recommend to the Constituent Assembly the abolition
of reservation of seats in the Legislatures for any community in India. The
report observed how a decision on the issue was postponed so that

representatives of the minorities on the committee should have adequate

^Select Documents IV, 11 (vi), pp. 589-9.

IV, ll(vii), pp. 599-602.

MINORITIES

771

time both to gauge public opinion among their people and to reflect fully
on the amendments, that had been proposed, so that a change,' if effected,
would be one sought voluntarily by the minorities themselves : and not ,
imposed on them by the majority community.

The report added that at the adjourned meeting held on May 11,
the resolution for the abolition of all reservation for minorities other
than Scheduled Castes found whole-hearted support from an overwhelming
majority of the members of the Advisory Committee. So far ^ as the
Scheduled Castes were concerned, it ' was recognized that their peculiar
position would make it necessary to give them reservation for a period
of ten years.

Vallabhbhai Patel explained this important decision to the Assembly on
May 25, 1949^ He said that the vast majority of the minority communities
had themselves realized after great reflection the evil effects in , the past of
such reservation on the minorities thenaselves. The voting for the abolition
of communal reservations was practically unanimous, only one member of
the committee voting against the proposal.

The proposal of the Advisory Committee was therefore that reservations
should be provided only for Scheduled Castes and Scheduled Tribes ; this
was due to the backward position ■ of these communities^, which made it
necessary that their representatives should be members of the' Legislatures
and actively participate in the political life of the country. In view of the
special position'' of the Anglo-Indians, the provision enabling the' President
and the Governors to nominate members of this community was also
retained.

Another matter of interest was also mentioned by Patel. The Constituent
Assembly had always recognized that the Scheduled Castes were a backward
section of the Hindu community who were handicapped ■ by the practice of
untouchability. This evil practice of untouchability was not recognized by
any other religion and the question of any Scheduled Castes belonging to
a religion other than Hinduism did not therefore arise. But, as has already
been noticed, the Sikhs had made a demand that some of their backward
sections— the Mazbabis, Ramdasias, Kabirpanthis and Sikligars — should be
included in the list of Scheduled Castes. This was accepted by the Advisory
Committee. Patel gave a characteristically candid explanation of the position
of these communities : these people were originally Scheduled Caste Hindus,
recently converted to the Sikh faith, and had the same disabilities as the Hindu
Scheduled Castes. He was emphatic that these converts were not Scheduled
Castes and ought not to be so labelled because in the Sikh religion there
was no such thing as untouchability or any classification or difference of
classes. But

as unfortunately in this country the Hindu religion is suffering from the
VoL Vni, pp. 269^^^^

772

FRAMING OF INDIA’S CONSTITUTION

evfl effects of, certain customs and prejudices that have crept into society,
so also the reformed community of Hindus, called the Sikhs, have also
in course of time suffered from degeneration to a certain extent.

The Sikhs felt that if these Scheduled Castes were not given the same
benefits as other Scheduled Castes, they would revert to Hinduism. Patel
went on to add :

I urged upon them strongly not to lower their religion to such a pitch as
really to fall to a level where for a mess of pottage you really give up the
substance of religion. But they did not agree. Therefore, the utmost that we
can do is to advise those people in their community who were wanting the
safeguards to go into the classification of Scheduled Castes. These people
have now agreed to be lumped with the Scheduled Castes ; not a very
good thing for the Sikh community, but yet they want it, and we feel
for the time being we should make that allowance for them. . .

Patel recognized that this was a political decision ; but for the sake of
securing their goodwill, he urged the Assembly to agree to this concession.
Summing up, he said:

In the long run it would be in the interests of all to forget that there is
anything like a majority or a minority in this country and that in India
there is only one community.

A lengthy discussion took place on these proposals of the Advisory
Committee. The majority of the speakers — and these included members
from all communities— Muslims, Christians, Anglo-Indians, Scheduled Castes,
as well as Hindus — offered full support to the proposal to abolish reservations
on communal grounds. Jawaharlal Nehru described the proposal as a
“historic turn in our destiny”. A safeguard of this kind would have some
point where there was autocratic or foreign rule; it would enable the
monarch to play one community off against the other.

But where you are up against a full-blooded democracy, if you seek to
give safeguards to a minority, and a relatively small minority, you Isolate
it. Maybe you protect it to a slight extent, but at what cost ? At the
cost of isolating it and keeping it away from the main current In which
the majority is going— I am talking on the political plane of course — at
the cost of forfeiting that inner sympathy and fellow-feeling with the
majority^

Three Muslim members of the Assembly expressed their opposition to
Patel’s motion for the abolition of reservations to al except Scheduled
Castes and Scheduled Tribes: and each of them suggested a different
alternative, Muhammad Saadulla from Assam, a member of the Drafting
Committee, wanted the continuance of reservations for a period of ten years.
Though he was personally not enamoured of reservation, the Muslim members
of Ms party in the Assam Legislature had given Mm a unanimous mandate

Deb.,^Vdi. VIII, p. 330.

MINORITIES

773

to claim reservation for the Muslims, and he felt that reservation would
have, a '‘tremendous psychological effect” on the Muslim coimniinity. ■ He
also made the inter^ting statement that only four members of the Muslim
cO'inmiinity were present at the meeting of the Advisory Committee on May
11 and that only one of them supported the pro'posal for the abolition of
reservations, thereby challenging Vallabhbhai Patel’s claim of unanimity,
Saadulla mentioned in particular that Abul Kalam Azad was neutral on
this issuCo

Muhammad Ismail from Madras not only opposed the motion but wanted
a reversion to the previous position of separate electorates. He moved an
amendment that the Assembly should approve and confirm the reservation
of seats on the population basis for Muslims and other minority communities
in the Central and Provincial Legislatures and that these seats would be
filled by members elected by constituencies of voters belonging to the
respective minorities. He maintained that separate electorates were the only
means of bringing about harmony among the people\

Z. H. Lari urged the removal of reservations for all communities and
suggested instead the introduction of a system of proportional representation
and cumulative voting through multi-member constituencies*.

These amendments were opposed by Vallabhbhai Patel in a forthright
speech in which he gave a resume of what had happened at the Advisory
Committee meeting. He said :

... it was Mr. Tajamul Husain from Bihar who stood up and moved an
amendment that reservations must go. He was challenged in the committee
whether he had consulted the other members of the Muslim community,
and he quoted chapter and verse frr^m the representatives of the Provinces
whom he had consulted. Yet we did not want a snap vote. I said that
I would advise the Advisory Committee to hold over the question and ask
ali members of the minority communities to consult their constituencies
and find out what they really wanted. Nearly four months after that we
met and unfortunately Mr. Saadulla was not present or he did not appear
and so the opinions that he had gathered remained with him. He did
not even communicate them to us. He said that there was only an
attendance of four there of whom (I do not know whether he has consulted
Maulana Azad or not) he says that Maulana Azad remained neutral. He
claims to know Maulana Azad’s mind more than I can do. But 1 can
tell him that Maulana Azad is not a cipher; he has a conscience. If he felt
that it was against the interests of his community he would have
immediately said so and protested. But he did not do so, because he
knew and felt that what was being done was right. Therefore if
Mr, Saadulla interprets Ms silence as neutrality he is much mistaken,

■ VoL VIII^ pp. 274-82.

. %/d., pp. 282^.\

774

FRAMING OF INDIA’S CONSTITUTION

because Maulana Azad is a man who has stood up against the whole
community all through his life and even in crises. He has not changed
his clothes and I am sure if he has claimed or worked for partition and
if he had ever believed that this is a country of two nations after the
partition he would not have remained here ; because he could not stay
here if he believed that his nation was separated

The proposal of the Advisory Committee was adopted by the Assembly
with an amendment moved by Thakurdas Bhargava that no reservation would
be operative for more than ten years.

The draft articles relating to minorities came up for discussion in the
Constituent Assembly on August 23, 1949, when Ambedkar moved an
amended article 292 providing reservation of seats in the House of the
People for Scheduled Castes and Scheduled Tribes, separately mentioning
the Schedule Tribes in the autonomous districts of Assam and those outside.
The revised draft also laid down that the number of seats reserved would
be according to the population^. Ambedkar mentioned that this revised
draft article was an exact reproduction of the decisions of the Advisory
Committee; but the changes from the Draft Constitution of February 1948
went much further. In the Draft Constitution as introduced by the Drafting
Committee, the reservation of seats in the case of tribes was limited to what
were at the time Provinces. Ambedkar’s amendment made provision for
reservation in all the States — irrespective of whether they were in Part I,
Part II or Part III of the First Schedule — in other words, throughout the
whole of India. This was one consequence of the integration of Indian
States but it passed unnoticed in the specific discussions on the article.

Several amendments were proposed to this clause. N. C. Laskar estimated
thaP according to the 1941 census, the total Scheduled Caste population
of Assam after separation of part of the Sylhet division and its transfer
to Pakistan would be about 377,000 ; and he was apprehensive that if the
ratio of one seat for every 500,000 or 750,000 of the population were to be
adopted, the Scheduled Castes would have to go without representation. He
therefore moved an amendment suggesting that the population proportion
generally adopted for the reservation of seats should not apply to the
Scheduled Castes of Assam. The point was countered by Kuladhar Chaliha,
who said that in spite of all his sympathy for the Scheduled Tribes in Assam,
their entitlement to reservation of seats would depend on their population
strength. Chaliha cited the cases of other communities who, on account of
the smallness of their numbers, would not be entitled to reservation.

Arising out of this discussion, dissatisfaction was again expressed that, so
far as the Scheduled Castes were concerned, the census of 1941 was a gross
under-enumeration and that a fresh census must be held to form the basis

^C. A. Deb., Vol. VIU, pp. 351-2.

2/iW., Vol. IX, p. 633.

•/faU, pp. 63-4.

MINORITIES

775

for the allocation of seats. Ambedkar repeated his previous assurance
that the Government would take suitable steps to remedy this situation^. He
did not make any definite commitment but promised that either a fresh
census would be taken or that an estimate of the population strength would
be made on the basis of the strength of voters, a process which he described
as a rough and ready estimate of the population. The Assembly accepted
this assurance.

Hukam Singh wanted it to be expressly stated that Scheduled Castes and
Scheduled Tribes would be entitled to contest “unreserved scats”. Ambedkar
affirmed that this was the intention and that while article 292, the article
under discussion, was not the appropriate place for a provision of this kind,
he assured the Assembly that a provision to this effect would find a place
in the law relating to elections. Other amendments related to matters
connected with electoral laws and the delimitation of constituencies and were
negatived by the Assembly on this ground*.

Thakurdas Bhargava moved an amendment designed to secure that in
Assam the Scheduled Tribes would not have the right to contest general
seats. Bhargava expressed himself in principle to be against reservations ;
but he added that in Assam, where seats not reserved for any particular
community would be less than 50 per cent, the reserved classes should not be
allowed to infringe on the rights of the unreserved classes. The Assembly
rejected his amendment®.

Draft article 293 enabled the Union Government to nominate not more
than two Anglo-Indians to the House of the People if it was considered that
the community was not adequately represented. When this article came
under discussion, Hukam Singh moved an amendment enabling the power of
nomination to be more extensively used. The amendment he introduced
empowered the President to nominate as many persons as he considered
adequate without any limit of numbers, if any minority community was
inadequately represented*. Ambedkar himself did not speak on the
amendment ; but R. K. Sidhva and Ananthasayanam Ayyangar pointed out
that the amendment was contrary to the spirit of the decisions taken by the
Assembly against nominations and reservations of seats for communities.
The amendment was rejected®.

The most important feature of the revised draft of article 294 was that
reservations were now confined in State Assemblies communally to Scheduled
Castes and Scheduled Tribes, and territorially to the autonomous districts
of Assam*; the number of seats reserved was proportionate to the population;

'C. A. Deb.. Vol IX, p. 65S.

nbid.. pp- 658-9.
pp. 647, 659.

‘/AM., pp. 660-1.
pp. 661-2.

nbid., p. 663.

776

FRAMING OF INDIA’S CONSTITUTION

ao person who was not a member of a Scheduled Tribe of an autonomous
district of Assam would be eligible for election from that district (except
from the constituency representing the cantonment and municipality of
Shillong); and reservation of seats for Scheduled Castes and Scheduled Tribes
was provided in all the States mentioned in Part I and Part III of the First
Schedule (that is, all the Provinces and all the Indian States except those
constituted into Chief Commissioners’ Provinces). The article was adopted
without any amendment. So was the next article (draft article 295) which
IMTOvidsd for the nomination of Anglo-Indians to State Legislative Assemblies.

A new article 295-A was moved by Ambedkar to lay down that the
reservation of seats for Scheduled Castes and Scheduled Tribes would cease
after ten years from the date of commencement of the Constitution*. This
was in accordance with the decision already taken by the Assembly. But a
number of clarificatoiy amendments were moved. Thakurdas Bhargava’s
amendment suggested that the special provision for the nomination of Anglo-
Indians should also cease after ten years*. T. T. Krishnamachari moved an
amendment to add a proviso to the effect that the abolition of reservations
at the end of ten years would not affect the representation of the House of
the People or the Legislative Assembly of a State until the dissolution of
the then existing House or Assembly^ He explained that there was a
lacuna in the article proposed by Ambedkar in that the period of ten years
might terminate at a time when these bodies had just begun their life after
a general election or were half-way through their life. The amendment would
ensure that the membership of the House and the representation therein
would continue unchanged till the next general election.

There was also a great deal of anxiety expressed by some members
representing the Scheduled Castes that the period of ten years would be quite
an insufficient period and that reservations might be necessary even
thereafter*.

Ambedkar accepted the amendments suggested by Bhargava and
Krishnamachari*. On the question of the period for which reservation of
seats for Scheduled Castes and Tribes would be necessary, he himself was
prepared to press for a longer period; but the ten years’ period was the
result of a general agreement among the parties, accepted by the Assembly,
and it would not be right to go back on these provisions at (hat stage. If
at the end of ten years the conditions of the Scheduled Castes and Tribes
had not improved or they wanted a further extension of (he period, “it
would not be beyond their capacity or their intelligence to invent new ways
of getting the same protection which they were promised here”. In reply

‘C. A. Deb., Vol. IX, p. 674.

Hbid.. p. 686

mid., p. 688.

mid., pp. 677 and 682.

mid., pp. m-7.

MINORITIES

ITl

to a query about Scheduled Tribes, Ambedkar was willing to give a far
longer time; but all those who had spoken about the reservations to
Scheduled Castes and Scheduled Tribes had been specific that reservations
should end after ten years. While faithfully carrying out the mandate of the
Constituent Assembly, Ambedkar left his audience in no doubt that his
own conviction was that reservations would be needed for a longer period;
and he quoted Burke’s famous saying “large empires and small minds go
ill together”.

With the amendments accepted by Ambedkar, the article was adopted by
the Assembly.

Draft article 296, relating to the preferential treatment to be given to
minorities in the matter of public appointments, came up for discussion on
August 26, 1949.

Ambedkar moved an amended clause restricting to the Scheduled Castes
and Scheduled Tribes any special treatment in the matter of recruitment to
the public services, but extending the scope of the preference to Part III States
(i.e., the Indian States) as well. There was a volume of opposition to this
proposal, especially on the ground that the amendment was not in accordance
with the previous decisions of the Assembly, and further discussion was
postponed in order that differences might be ironed out in private discussion.
The matter was taken up on October 14, 1949, when the Assembly gave its
concurrence to the reopening of the issue. An acrimonious debate followed.
Hukam Singh wanted that no change should be made in the article as it
appeared in the Draft Constitution. He, therefore, moved an amendment
m^ng it clear that in regard to appointments to the public services, the
Constitution should require the Central and State Governments to give special
consideration to all minorities, and not only to Sdieduled Castes and
Scheduled Tribes, as was now proposed by the Drafting Committee : he added
an explanation specifying Muslims, Christians, Sikhs, Anglo-Indians and
Parsis as the recognized minorities. In an impassioned speech, Hukam Singh
complained that step by step the protection and safeguards to minorities had
been whittled down, until only two provisions were left — consideration for
appointment to the public services and inclusion within the scope of functions
of the special officer on minorities. He alleged that the pledges given to the
Sikhs from time to time were being violated; and he urged the Assembly
“to go slow”; he appealed to the majority to win the confidence of the
minorities by “positive actions and not by slogans”— the positive action
suggested being apparently the retention of the direction to be given to the
Central and State Governments to ensure proper representation in the public
services for all minorities*.

Vallabhbhai Patel replied to these comments^. He said that the question

^C. A. Deb., Vol. X, pp. 232-6.
pp. 246-50.

778

FRAMING OF INDIA’S CONSTITUTION

of representation in the public services was specifically raised in the Advisory
Committee and it was agreed that neither this nor any other matter would
be raised. Referring to the charge of breach of faith Patel said :

We are not the people to break pledges. Every sympathy and every
consideration will be shown to the Sikh community because it is located
in a particular area ; it is a small community ; and yet it is brave and
virile and it can stand on its own against anybody. Do not break that
spirit by continuously saying, “We are injured, we are helpless, we arc in
a minority, we are hopeless, we cannot do anything”.

On the particular issue of representation in the public services Patel said
that the Sikhs were not backward in any respect — ^in trade, industry, commerce
or anything else. He therefore appealed to them to “forget that psychology”.

Referring to the Muslims, Patel admitted that, on account of the partition
of the country and the subsequent events, their position was not “as happy
as it should be”. But since partition, whatever was being done in Pakistan
was having its reaction in India and the Government had to struggle day
and night. He appealed to them to drop claims for minor provisions. He
said:

Fight over issues beneficial to the whole country. Let us do that. Let us
prepare the ground for that. You have big interests involved in two
Provinces. Though the problems in Bengal are different, as in the Punjab,
they have also certain problems. These problems can be settled not by
the Centre, but by the Provinces themselves. So, for God’s sake, those
who are interested in the well-being of the country should create a different
atmosphere and not an atmosphere of distrust and discord.

The amended article as proposed by Ambedkar was adopted by the
Assembly. Draft articles 297 and 298, dealing with the special representation
of Anglo-Indians in certain services and the protection of special grants to
Anglo-Indian schools, were discussed on June 16, 1949*. The first of these
two articles was adopted without any discussion. There was some discussion
on the second article, but Munshi explained to the Assembly the background
of these provisions. The Anglo-Indian community was imder the protective
wings of the old Government in such a manner that it was impossible for
it to stand on its legs unless it was spoon-fed by some concessions for a short
period of time. Over sixty per cent of its adults were in these services and
a sudden change would throw the community immediately on the streets.
The educational institutions for which special grants were being made had
attained a high standard and took students from other communities as welT.
In the light of this explanation the article was adopted by the Assembly.

Draft article 299 relating to the appointment of special officers to investigate
and report on minority safeguards was also amended by the Drafting

‘C. X Dei., Vol. Vin, pp. 937-41.

’‘Ibid., pp. 940-1.

MINORITIES

779

Committee in two important respects. In the first place, the jurisdiction of
the special officers was limited to Scheduled Castes. Scheduled Tribes. Anglo-
Indians and other backward classes. The second change was that there was
to be only one special officer to be appointed by the Union Government
who would function for the Centre as well as for the States. The amended
article was moved by K. M. Munshi on October 14, 1949'.

A number of amendments were moved but controversy principally centred
round the demand of Bhopinder Singh Mann and Hukam Singh that the
jurisdiction of the officer, should extend to matters pertaining to all minorities,
including Muslims. Christians and Sikhs. K. M. Munshi replying to the debate
emphasized that the safeguards which the special officer was to investigate
would be the political safeguards for the protection of certain weU-defined
sections of citizens; and since specific political safeguards were now confined
to the Scheduled Castes, Scheduled Tribes and Anglo-Indians, and certain
backward classes, the special officer would deal only with these safeguards
and these communities.

The amendments were also negatived and the article as proposed by
Munshi was adopted.

Article 300 of the Draft Constitution dealt with two separate matters. It
empowered the Union Gcvemment to appoint a commission to report on
the administration of the Scheduled Areas and the welfare of Scheduled Tribes
and made it mandatory that such a commission should be appointed on the
expiration of ten years. The article also gave power to the Union Government
to direct a State to draw up and execute schemes essential for the welfare
of Scheduled Tribes. This article was adopted by the Assembly on June 16,
1949, with an amendment moved by Ambedkar extending the scope of its
provisions to Indian State territory as well — an amendment warmly welcomed
by A. V. Thakkarl

Two new articles 300-A and 300-B were moved by Ambedkar on September
17. 1949. As already noticed, the Scheduled Castes had been defined in the
Draft Constitution as including certain communities recognized as such under
the Government of India Act of 1935; and the Scheduled Tribes were listed
in the Eighth Schedule to the Draft Constitution. Ambedkar explained that
the object of these articles was to eliminate the necessity of burdening the
Constitution with long lists of Scheduled Castes and Scheduled Tribes. It was
now proposed that the President, in consultation with the Governor or Ruler
of a State, should have the power to issue a general notification in the official
gazette specifying the castes or tribes deemed to be Scheduled Castes or Tribes,
^is procedure became necessary also because the lists previously compiled
covered only what were then the Provinces of the Dominion of India; and
with the inclusion of the territories of the Indian States within the framework

'C. A. l>eb.,ydl. X, p. 251.

Vol. VIII, p. 942.

780

FRAMING OF INDU’S CONSTITUTION

of the Constitution, it became necessary to define the Scheduled Castes and
Tribes in these territories as well. The two new articles enabled this to be
done, the only limitation being that if any elimination was subsequently to
be made from the list initially notified, or if any addition was to be made,
this could be done only by Parliament.

These articles were adopted by the Assembly.

The Drafting Committee did not effect any change in the course of revision
and in the Draft of November 1949 the articles were set forth as articles
330-342 in Part XVI. When the revised draft came up for discussion on
November 16. T. T. Krishnamachari suggested in an amendment that for the
word “minorities” wherever it occurred, the words “certain classes” be
substituted. This was necessary, he pointed out, in view of the objection
raised by some members to the use of the words “minorities” even in the
heading of this Part and also the consequential use of this word elsewhere.
The amendment was adopted by the Assembly, and the heading was changed
to “Special provisions relating to certain classes”.

NOTE ON AMENDMENT

Article 334; The Constitution (Eighth Amendment) Act, 1959, substituted
the words “twenty years” for the words “ten years” in article 334, thus
extending by ten years the period during which seats would be reserved in
the House of the People for the Scheduled Castes and the Scheduled Tribes
and representation by nomination of the Anglo-Indians in the House of the
People and the State Legislative Assemblies. It was felt that the object,
which was sought to be achieved by the reservation of seats for the
Scheduled Castes and the Scheduled Tribes, was not achieved within the first
ten years.

THE OFFICIAL LANGUAGE

A PROBLEM WHICH aroused one of the keenest controversies in the
Constituent Assembly was in regard to the official language. This issue
produced so much heat and gave rise to such violent feelings that it was felt
necessary from the outset to keep it out of direct discussion in the Assembly.
The leaders made every effort to settle it on the basis of general accord, but
often it seemed as though a settlement might not be possible. It was not until
towards the end of the constitution-making process that some kind of
agreement could be reached.

The sub-continent of India has always known a number of languages and
dialects. Tlie principal languages used in the various parts of the country
have been classified into two broad categories— the Sanskrit-based languages,
some of the more important among them being Hindi, Bengali. Gujarati and
Marathi; and the Dravidian languages of Tamil, Telugu, Kannada and
Malayalam. As a matter of fact, in the course of India’s long history, Sanskrit
made its impact on scholars throughout the country and made a significant
contribution to the development of all the Indian languages; nevertheless,
each of these languages remained distinct and separate, with its own script
and its grammar; and in the absence of administrative unity, a common
language was never the goal.

With the establishment of British rule, English came to be adopted as the
language in which official correspondence was carried on at the higher levels
and throughout the country higher education was imparted through English
which thus provided a medium of communication for the Indian intelligentia
throughout the country. “In doing so it served as a force for national unity
and developing national consciousness as well as an administrative
convenience”'.

From the earliest decades of the nineteenth century the linguistic issue
appears to have developed a communal turn in Northern India in the shape
of the Hindi-Urdu controversy. Under Moghul rule Persian was the court
language; but with the fall of the Moghul empire, Persian was replaced
by Urdu. From the second half of the nineteenth century Hindi and
Urdu began to signify something different from each other and this
separatism continued to grow in spite of several common features in
Hindi and Urdu. Writing in 1941, Jawaharlal Nehru commented that
“communalism is strong enough in India and so the separatist tendency

’Michael SitchcT, Nehru— A Political Biography, p. 4S9.

782

FRAMING 01? INDIA’S CONSTITUTION

persists with the- unifying tendency”. He said:

Scratch a separatist in language and you will invariably find that he Is a
communalist and very often a political reactionary^

In the earlier days of the freedom movement which struck roots in India
in the closing decades of the last century, English was the language used
exclusively for. the expression of India’s political aspirations. But with
Mahatma Gandhi’s arrival on the po-litical scene towards the end of the first
world war. he saw clearly that English could in no circumstances be the
national language of India; and it would have to be replaced by Hindustani
if the movement was to evoke the support of the masses.

Our love of the English language in preference to our own mother-tongue
has caused a deep chasm between the educated and the politically-minded
classes and the massesl

Gandhi was of the opinion that every move in the independence struggle
should be explained to the masses in their own regional languages: and further
that for all-India intercourse we needed, from among them, a language which
the largest number of people already knew and understood and which others
could easily learn. He was also uneasily conscious of the fact that the Hindi-
Urdu question had assumed a deep-seated communal form. Bearing all these
complicating factors in mind he did a great deal of propaganda for the
adoption of Hindustani as the common language for India, “Hindustani”
signifying a mixture of Hindi and Urdu. He also advocated the use of both
the Urdu and the Devanagari scripts. The Congress oflScially adopted this
policy in 1925 in the following resolution :

The proceedings of the Congress shall be conducted, as far as possible,
in Hindustani. The English language or any provincial language may be
used if the speaker is unable to speak Hindustani or whenever necessary.
Proceedings of the Provincial Congress Committee shall ordinarily be
conducted in the language of the Province concerned. Hindustani may
also be used.

Nothing of substance appears however to have been achieved as a result
of this resolution. Gandhi had to admit, seventeen years later, that no steps
had been taken to implement the resolution and English continued to be used
as the language of the Congress. He therefore decided on starting a Hindustani
Prachar Sabha at Wardha in 19421 But it is also worth remarking that both
Gandhi and Nehm realized the value of the English language to India ; the
former, writing in 1935, had said :

Knowledge of English is necessary to us for the acquisition of modern
knowledge, for the study of modern literature, for knowledge of the
world, for intercourse with the present rulers and such other purposes*.

^Z, A. Ahmad, National Language for India, p. 55.

K. Gandhi, Our Language Problem, p. 5.

Hbid„pp.7&l.

34, /

THE OFFICIAL LANGUAGE

783

Considerable efforts were made under Gandhi’s initiative to spread the
tudy ot Hindustani throughout India ; but at the time the Constituent
Assembly began its work in 1946 very little real progress had been made
owards its becoming an all-India language. On the other hand, particularly
n the United Provinces not only had the Hindi-Urdu controversy taken a
ommunal turn; but within the Congress itself, while leaders like Gandhi
nd Jawaharlal Nehru were advocating the adoption of Hindustani with both
cripts — Devanagari and Urdu — there was a strong “Hindi” section led by
aen like Purshottamdas Tandon in favour of the adoption of the Hindi
inguage with a strong Sanskrit bias and the Devanagari script.

Feelings on the language issue developed formidably almost from the
)pening of the Constituent Assembly. It was, however, not the Hindi versus
Jrdu or Hindi versus Hindustani controversy that was raised at this time;
here was general agreement that Hindustani might be the name for the
lational language. When the question of the setting up of a committee on
he rules of procedure was discussed, R. V. Dhulekar moved an amendment
>roposing that the committee should frame rules in Hindustani and not in
inglish. The Chairman requested him to speak in English, as many members
ould not understand Hindustani; but Dhulekar not only insisted on speaking
n Hindustani but made the remark that those who did not know Hindustani
lad no right to stay in India and were not worthy to be members of the
Assembly. The Chairman cut the discussion short by ruling the amendment
)ut of order and prohibiting all further discussion*; but the issue was revived
vhen the report of the committee came up for discussion. The committee
ecommended that in the Assembly business should be transacted in
lindustani (Hindi or Urdu) or English, but the Chairman was permitted
o allow any member unacquainted with these languages to address the
Assembly in his mother tongue. The official records of the Assembly were
o be kept in Urdu, Hindi and English.

When the report was discussed, Govind Das moved an amendment
o insist on the business of the Assembly being transacted in Hindustani;
)nly those unacquainted with this language could speak in their mother tongue
>r in English. He anticipated the criticism of this suggestion later made
)y Ramnath Goenka— that over sixty to seventy million people from South
'ndia did not understand Hindustani; and that no one had a clear idea as
o what the term Hindustani itself meant, with an inconclusive controversy
n progress between Gandhi and Purshottamdas Tandon on the subject,
jovind Das impatiently dismissed all this criticism with the remark :

I want to tell my brethren from Madras that if after 25 years of efforts on
the part of Mahatma Gandhi they have not been able to understand
Hindustani, the blame lies at their door. It is beyond our patience to
bear that because some of our brethren from Madras do not understand

1C. A. Deb., Vol. I, pp. 26-7.

784

FRAMING OF INDIA’S CONSTITUTION

Hindustani, English should reign supreme in a Constituent Assembly

which is said to be a sovereign body and which has assembled to frame

a constitution for a free India.

Considerable divergence of opinion arose on the discussion of the rule,
the controversy ending with closure being applied, and the acceptance of
the compromise rule proposed by the Rules Committee with a verbal
amendment'.

The language issue as such figured for the first time before the Fundamental
Rights Sub-Committee. The draft submitted to the sub-committee by K. M.
Munshi included a provision that Hindustani, including Hindi and Urdu,
should be the national language of the Union, written at the option of a
citizen in Devanagari or Persian characters. The Union was to be empowered
to declare by law that the official or educational medium in any State or part
of the State should be Hindustani, in addition to any other language. Further
under the right to education every citizen was to have facilities provided for
learning the national language in a script of his choice^.

The sub-committee made the following recommendations :

(i) Hindustani, written at the option of every citizen either in the
Devanagari or the Persian script should, as the national language,
be the first official language of the Union ;

(ii) English would be the second official language for a transitional
period to be prescribed by the Union by law ;

(iii) the Union would have power to declare that aU its official records
should be maintained in Hindustani in both the Devanagari and the
Persian scripts, and until the law provided otherwise, also in English’.

Considerable discussion ensued on the point whether these matters should
appropriately be included among the fundamental rights. The sub-committee
decided eventually in favour of their inclusion in view of the peculiar
conditions in the country* : accordingly a further clause was included under
“Rights to Education” entitling every citizen to have facilities provided for
him for learning the national language in either the Devanagari or in the
Persian script, at his option’.

The flaws in these provisions were revealed early in the Constituent
Assembly. The provision of legal remedies to enforce fundamental rights
was a basic principle accepted by the sub-committee; and the Constitutional
Adviser doubted if a provision of the kind contemplated could be enforced
by legal action®. M. R. Masani and Mrs. Hansa Mehta in a joint minute
of dissent urged the addition of the Roman script along with Devanagari

*C. A. Deb., Vol. I, pp. 233-8.

^Select Documents II, 4{ii), pp. 15, 71.

^Minutes, March 24, 1947, Select Documents II, 4(iii), pp. 117-8.

‘Minutes, March 25, 1947, Select Documents II, 4(iii), p. 119.

'Report, April 16, 1947, Select Documents II, 4(viii), p. 174.

^Select Documents II, 4(v), p. 152.

THE OFFICIAL LANGUAGE

785

and Persian; people, particularly from South India, would find it easier to
learn the national language and use it if they could do so through the
medium of the Roman scripP.

Ambedkar was critical of the terminology adopted by the sub-committee
which made it clear that Hindustani need not be the language of the units :
he thought that Hindustani should be the language of the Union and of the
units. If each unit were given the liberty to adopt a language for official
purposes, not only would the object of having a national language for India
be defeated but linguistic diversity would make Indian administration
impossible ; the units should therefore be under an obligation to adopt
Hindustani as the official language from the start.

Ambedkar also sensed the great danger of Hindustani being “Sanskritized”
by Hindu writers and “Arabicized” by Muslim writers. If this happened,
he warned, Hindustani would cease to be a national language and would
become a sectional language. To overcome this danger he suggested a
provision in the Constitution for the establishment of a National Academy
on the model of the French National Academy”.

K. M. Panikkar observed in his dissenting note that facilities provided for
learning the national language, either in the Devanagari or the Persian script
at the option of the pupil, would lead to grave conflicts between the Centre
and the units in large areas involving millions of people. Such an attempt,
he warned, would be resisted by people in many Provinces on the sentimental
ground of attachment to their respective languages. Considered from the
administrative point of view it was also impracticable. The cost would be
so high that the whole educational policy in non-Hindi areas might possibly
be wrecked on if.

The Advisory Committee meeting on April 21 postponed the consideration
of the national language; subsequently all references to the national language
were deleted from the list of fundamental rights at the suggestion of
Vallabhbhai Patel who observed that it was likely to raise controversies.
The Advisory Committee in its supplementary report observed ;

In view of the fact that the Constituent Assembly is already seized of the
matter by certain recommendations of the Union Constitution Committee’s
Report, we think it unnecessary to incorporate any provision on the subject
in the list of fimdamental rights*.

The Union Constitution Committee had not, however, considered the
question of a national language, but only the more limited issue of the
language to be used in the Legislatures. The Constitutional Adviser in
his memoranda on the principles of the Union and Provincial Constitutions
had provided for the language to be used in Parliament as well as in the

^Select Documenis U, pp. 176-7.

’Ibid., p. 183.

mid., p. 188.

mid., n, 7(iv), p. 305.

786

FRAMING OF INDIA’S CONSTITUTION

Provincial Legislatures*. These provisions followed the corresponding
fffovision of the Rules of Procedure of the Constituent Assembly, and laid
down that the language used in the Union Parliament (and the Provincial
Legislatures) would be Hindustani (Hindi or Urdu) or English, members not
sufficiently acquainted with these languages being permitted to speak in
their mother-tongue. This formula was adopted by both committees, with
a change made by the Provincial Constitution Committee permitting the use
of the “provincial language or languages’’^ These provisions were not
discussed at the time by the Assembly. When the Provincial Constitution
Committee’s Report came up first for consideration, Vallabhbhai Patel
suggested that the provision relating to the language to be used in the
Provincial Legislatures and the Union Parliament should be considered
together^. But this discussion was also postponed. There is little doubt
that this postponement was necessitated by the emergence of the language
controversy in an acute form. Patel himself mentioned that this was a
controversial matter, with the likelihood of its creatiog some confusion.

It would be relevant to point out that the Constituent Assembly was
meeting at a time when partition was imminent. With the decision to
partition the country many members of the Congress party became zealous
champions of the exclusive adoption of the Hindi language in the Devanagari
script as the sole national language for India; and some of them also
advocated the immediate discontinuance of the use of English. One of the
amendments of which Govind Das gave notice read :

The national language of the Indian Union shall be Hindi (written in
Devanagari script) and in the Federal Parliament business shall be
transacted in Hindi written in the Devanagari scripP.

The leaders of the Congress had so far been able to adopt a compromise
solution the main factors of which were —

(i) that Hindustani (either Urdu or Hindi) would be adopted as the
national language and

(ii) that for a considerable period, until all areas in the coimtry were
able to use Hindustani, the use of English would continue.

Because of these commitments, the Congress leaders seemed unable
to accept the amendments proposed: but for obvious reasons they did not
consider it prudent to allow a wrangle to develop on this issue. The Assembly
accepted the suggestion made by Vallabhbhai Patel and Ananthasayanam
Ayyangar that the consideration of the language issue be postponed.

Neither the Draft Constitution prepared by the Constitutional Adviser nor
the version as settled by the Drafting Committee contained any provisions on
the general issue of language; but they specified the language to be used in

^Select Documents II, 15(ii) and 21(ii), pp. 481, 637.

nbid., II, 18(0 and 24(0, pp. 583, 671-2.

SC. DeN, Vol. IV, p. 691.

‘Notice of Amendments, List No. 2, dated 19-7-47. (Not published.)

THE OFFICUL LANGUAGE

787

the Union Parliament and the State Legwlatures. While the Constitutional
Adviser’s Draft’ followed closely the proposals of the Union and Provincial
Constitution Committees and used the term “Hindustani (Hindi or Urdu)”,
the Drafting Committee made an important change and used instead the
term “Hindi”'. K. M. Munshi, a member of the Drafting Committee, later
explained that a resolution had been adopted at a meeting of the Congress
party in favour of the change in this manner; and the committee by a
majority decided that the change should be given effect to in the Draft
Constitution’.

When the Draft Constitution was circulated, Sachchidananda Sinha tabled
an amendment restoring “Hindustani (Hindi or Urdu)”; and Govind Das
and Thakurdas Bhargava proposed one which sought to do away with the
use of English after a maximum period of five years*. They also suggested the
inclusion of a new article among the fundamental rights providing that Hindi
with the Devanagari script should be the national language throughout India.
These suggestions were considered by the Special Committee, which decided
that the language issue was one which should be left to the Assembly as
a whole to decide’’.

The issue then came up before the Steering Committee. At its meeting
held on October 26, 1948, G. S. Gupta moved (i) that English could not and
must not long remain the official language of free and sovereign India but
should be replaced at the Centre by Hindi vnthin a reasonable time; (ii) that
the Constitution of India should be prepared in Hindi, side by side with
English; and (iii) that provision should be made in the Constitution that
Hindi and English texts should be of equal authority. The English text
would cease to be valid after the expiry of five years from the commencement
of the Constitution and thereafter the Hindi text should be solely
authoritative. A similar motion was moved by Shibban Lai Saxena on
November 10. On both occasions the committee decided that it should
be taken up only after the Assembly had decided upon which should be the
official language to be used in the Union Parliament*.

Attempts were again made to raise the language issue when the Assembly
discussed the procedure for the consideration of the Draft Constitution.
Govind Das started the discussion with the suggestion that after the adoption
of the article relating to the national language, the articles in the Constitution
should be placed again before the Assembly for adoption in Hindi. Balkrishna
Sharma went one step further : one of his suggestions was that a decision

^Select Documents III, 1, Clauses 83 and 155, pp. 35, 63.
a/Wrf., Ill, 6, Articles 99 and 184, pp. 553, 585-6.

Hbid.. Vf, m, p. 404.

IV, l(i), p. 44.

^Minutes, April 11, 1948. Select Documents IV; I(m), p. 412.
'Record of Proceedings of the Steering Committee. October 26

10, 1948. (Not puMistied^

and November

788

FRAMING OF INDIA’S CONSTITUTION

should first bs taken on the language issue ; thereafter the Constitution could
be taken up in English as well as in Hindi. The President of the Assembly.
Rajendra Prasad, suggested that since the language issue had evoked
considerable difference of opinion, the fundamentals of the Constitution
should be discussed in a calm atmosphere “before tempers got frayed”. He
said :

Whatever our sentiments may dictate, we have to recognize the fact that
most of those who have been concerned with the drafting of the
Constitution can express themselves better in English than they can in
Hindi ; it is not only a question of expressing (oneself) in English or Hindi,
but the ideas have also been taken from constitutions of the West. So the
expressions which have been used have, many of them, histories of their
own and we have taken them bodily from the phraseology of constitutions
of the West in many places. Therefore it could not be helped because of
the limitation of those who were charged with drafting that the Draft had
to be prepared in English’.

The language issue again figured prominently during the general discussion
on the Draft Constitution; and the sharp differences of opinion which
developed in the course of the debate revealed the extent of feeling which
the question had engendered. Three main currents of opinion were expressed.
Govind Das and the other protagonists of Hindi demanded that the
Constitution should specifically provide for Hindi in the Devanagari script
as the ofiScial language of the country”. Many of them were willing to
continue the use of English as a transitional arrangement ; and their main
objective was to secure the recognition of Hindi as the national language
in the Constitution. Some members pleaded for the retention of Hindustani
with both Devanagari and Urdu scripts. They were not slow to point out
that this was what Gandhi had stood for throughout his life”. The third
opinion, mainly from non-Hindi speaking areas, was that while they were
not antagonistic to Hindi, they would resent what appeared to them to
constitute the imposition of one language over the whole coimtry and over
vast numbers of people who were not acquainted with the language. The
most forceful exponent of this point of view was T. T. Krishnamachari who
said that “language imperialism”, as he termed it, threatened to bring into
being a type of totalitarianism and warned the Assembly against its reaction
on the rest of the units of the Union of India to be. He made no secret
of the fear that he entertained that the Hindi issue, pressed too far, might
result in a secessionist movement.

1 would convey a warning on behalf of the people of the South for the
reason that there are already elements in South India who want separation
and it is up to us to tax the maximum strength we have to keep those

’C. .4. Dei., Vol. VII, p. 20.

‘Ibid.i p. 222.

%/d., p. 304.

THE OFFICIAL LANGUAGE

789

clemeiits down, and my honourable friends in the UP. do not help
In any way by flogging their idea of ‘Hindi Imperialism’ to the; maximum
extent possible. It is up to my friends in the U.P. to have a whole India,
it is up to them to have a ‘Hindi India’. The choice is theirs and they can
incorporate it in this Constitution ; and if we are left out, well, we will only
curse our luck and hope for better times to come\

Nehru also referred to this issue and explanied why it would be wiser
for the moment not to make any provision in the Constitution. He admitted
that it was obvious and vital that any country, much more so a free and
independent country, must function in its own language; the mere fact that
he and many of his colleagues had to address the Assembly in a foreign
language itself showed that “something was lacking”.

But, if in trying to press for a change, an immediate change, we get
wrapped up in numerous controversies and possibly even delay the whole
Constitution, I submit to this House, it is not a very wise step to take.
Language is and has been a vital factor in an individual’s and a nation’s
life and because it is vital, we have to give it every thought and
consideration. , , Powerful forces are at work in the country which will
inevitably lead to the substitution of the English language by an Indian
language or Indian languages in so far as the different parts of the country are
concerned ; but there will always be one all-India language. Powerful forces
are also working at the formation of that all-India language. Language
ultimately grows from the people ; it is seldom that it can be imposed. Any
attempt to impose a particular form of language on an unwilling people
has usually met with the strongest opposition and has actually resulted
in something the very reverse of what the promoters thought. I would
beg this House to consider the fact and to realize if it agrees wSh me,
that the surest way of developing a natural all-India language is not so
much to pass resolutions and laws on the subject but to work to that end
in other waysl

Article 99 on the language to be used in Parliament was due to be
considered by the Assembly on May 23 and article 184, on the language
for the State Legislatures, on June 11; but discussion on these articles was
postponed.

Certain developments which took place outside the Assembly are relevant
in this context The number and the diversity of amendments of which
notice was given will give some idea of the trends of prevalent opinions.
One amendment stood in the name of eighty-two membersA and it was

1C. Vol VII, p. 235.

p. 321.

^AcMnt Ram; Ajit Prasad Jain; Amiyo Kumar Ghosh; M. Ananthasayanam
Ayyangar; Ari Bahadur Gumng; Balkrishna Sharma; Balwant Sinha Mehta;
Bhagwant Roy; Bhagwat Prasad; L. S. Bhatkar; Blnodanand Jha; Biijlal
Biyanl; Boniface Lakra; Brajeshwar Prasad; Chhedlial; Dale! Singh; Damodar

790 FRAMING OF INDIA’S CONSTITUTION

also tabled separately ■ by Govind Das. It laid down the following
propositions :

The Hindi language in the Devanagari script would be the official
language of the Union.

' The English language in the Roman script would be an additional
official language for a period of ten years.

During this period Parliament might by law provide for the use of
either language for any one or more official purposes.

A State could adopt any regional language for official purposes within
the State.

This was countered by another amendment proposed by Santhanam and
forty-three others^ This amendment accepted the declaration of Hindi
as the official language but wanted that for fifteen years and for such further
period as Parliament might determine, English would continue to be used
for all purposes for which it was being used; that during the transitional
period. Parliament by a two-thirds majority could authorize the use of
Hindi in addition to English for specific purposes; that for all official
purposes of the Union and the States Arabic numerals would be used ;
and that the Government of India would make adequate grants for the
teaching of Hindi in every non -Hindi-speaking State.

Swamp Seth; B. Das; Dayal Dass Bhagat; Desbbandhu Gupta; A. Dharam Dass;
Dharam Prakash; Dharanidhar Basu-Matari; R. V. Dhulekar; Gokui Lai Asawa;
Govind Malviya; Har Govind Pant; P. D. Himatsingka; Jagat Narain Lai; Jainarain
Vyas; Jaisukh Lai Hathi; Jaswant Singhji; Jivraj Narayan Mehta; Jugal Kishore;
Mrs. Kamala Chaudhuri; H. V. Kamath; Kameshwara Singh of Darbhanga; Kamla-
pati Tiwari; Kamleshwari Prasad Yadav; V. C. Kesava Rao; H. J. Khandekar;
Kishori Mohan Tripathi: Krishna Chandra Sharma; Kusum Kant Jain; Lakshmi-
narayan Sahu; Lokanath Misra; Mahavir Tyagi; R. L. Malviya; B. A. Mandloi;
Manikya Lai Verma; Masuriya Din; A. K. Menon; Mohan Lai Gautam; Nand
Kishore Das; Y. S, Parmar; Phooi Singh; C. M. Poonacha; Pragi Lai; Mrs. Purnima
Banedi; Radha Ballabh Vijaivargiya; Raghunandan Prasad; Raj Bahadur;
Ramchandra Manohar Nalavade; Ramnarayan Singh; Ramnath Goenka; Ranbir
Singh; Santanu Kumar Das; Sarangdhar Sinha; Satish Chandra; R. K. Sidhva; Sita
Ram S. Jajoo; Sri Narain Mahtha; Sunder Lai; Mrs. Sucheta Kripalani; Syamanandan
Sahaya; A. V. Thakkar; Thakurdas Bhargava; Venkatesb Narayan TIvary;
Vinayakrao Balshankar Vaidya; Vishwambhar Dayal Tripathi; Yadubans Sahay;
Yeshwant Rai.

^O. V. Aiagesan; Alladi Krishnaswami Ayyar; M. Ananthasayanam Ayyangar;
Mrs, Annie Mascarene; Boniface Lakra; T. Channiah; Mrs. Dakshayani Velayudhan;
Dharanidhar 'Basu-Matari; Mrs. G. Durgabai; D. Govinda Doss; H. R. Gurav
Reddy; K. Hanumanthaiya; Jaipal Singh; Jerome D’Souza; Kaliur Subba Rao;
V. C. Kesava Rao; T. T. Kjishnamachari; S. V. Krishnamoorthy Rao; L. Krlshna-
swami Bharathi; P. Kunhiraman; N. C. Laskar; Mahboob Ali Baig; A, K. Menon;
K. A. Mohamed; B. N. Munavalli; V., I Muniswamy PHlay; S. Nagappa; ■ P. S.
Nataraja Fillai; B. Pocker; C. M. Poonacha; Raghunandan • Prasad; Raja of Bobbili;
V. Ramalah; T. A. Ramalingam Chettiar;' O. P, Ramaswamy Reddy; K, Santhanam;
B. Shiva Rao; H. Siddaveerappa; U." Srinivasa Maliayya; P. Subbarayan, ■€,
Subramaniam; V. Subramaniam; M, Thirumala Rao; ,T. X M. Wilson.

THE OFFICIAL LANGUAGE 791

Other amendments proposed Hindustani and the Devanagari and Persian
scripts ; and others laid down different transitional periods*.

Outside the Assembly discussions and consultations continued within the
Congress Party at various levels to arrive at a solution acceptable to all
shades of opinion; for indeed on no other issue had there been such sharp
difference of opinion. With the general acceptance of Hindi, the main point
of controversy centred round the length of the transitional period and the
continuance of English with the full status of an official language during
this period. Govind Ballabh Pant made a suggestion which is worth
lecording : he said that the question of prescribing a time-limit for doing
away with English should be left to the verdict of the non-Hindi-speaking
people^

On August 5. 1949, the Congress Working Committee passed a resolution
on the subject of a national language in the following terms :

For all-India purposes there will be a State language in which the business
of the Union will be conducted. That will be the language of
correspondence with the Provincial and State Governments. All records
of the Centre will be kept and maintained in that language. It will also
serve as a language for inter-provincial and inter-State commerce and
correspondence. During a period of transition which shall not exceed
fifteen years, English may be used at the Centre and for inter-provincial
affairs, provided that the State language will be progressively utilized
until it replaces English’.

This resolution carefully avoided specifying what the national language
should be, obviously because the Hindi — Hindustani dispute continued to
be a sensitive one. But Govind Das, as the President of the All-India Hindi
Sahitya Sammelan, convened a National Language Convention in New Delhi
on August 6 and 7, to ascertain the views of well-known scholars in
different languages regarding the future national language of the country.
The convention unanimously recommended that Hindi with Devanagari
as its script be adopted in the Constitution of India as the Rashtra Bhasha
(national language) of the Union of India. Govind Das said that if the
Government was not satisfied even after the unanimous view of over a
hundred representatives of different languages that Hindi should be the
national language of the country, a referendum should be held to decide
the language problem. He was confident that 90 per cent of the people
of India would definitely vote in favour of Hindi*.

The Congress party in the Constituent Assembly met on August 11 to
consider the question of the official language. There was unanimity of

^List of amendments received on August 7 and 8, 1948 (Not published).

’The Hindu (Madras), August 11, 1949.

^Indian National Congress, Resolutions on language policy, 1949-1965, p. 2.

*The Hindu (Madras), August 7 and 8, 1949.

792

FRAMING OF INDIA’S CONSTITUTION

opinion that Hindi should bs the official language and Devanagari the script.
But on a number of other issues different views were expressed, and a
special committee was appointed to draft an appropriate article, giving effect
to the tentative conclusion reached at the meeting. This special committee
consisted of members of the Drafting Committee and, in addition, Abul
Kalam Azad, Govind Ballabh Pant, Purushottamdas Tandon, Balkrishna
Sharma, Syama Prasad Mookerjee and K. Santhanam : and it was asked
to bear in mind the various views expressed in the meeting'.

The draft produced by the special committee was discussed on August
16. According to press reports the committee decided that English would
be the o«/y official language for ten years ; thereafter, if both Houses of
Parliament so decided by a two-thirds majority of the members present
and voting, it could be extended for another five years. The implication
of this decision seemed to be that after fifteen years Hindi would
automatically become the official language for India. If the need for the
cxmtinuance of English for international purposes was felt. Parliament
could authorize it by a simple majority vote. “International numerals”,
a term substituted for Arabic numerals, would continue to be used.

Abul Kalam Azad attended only the first meeting of this committee.
He was a staunch advocate of the adoption of Hindustani with both
Devanagari and Urdu scripts; and when he found that the majority of the
members had a preconceived notion and would neither adopt “Hindustani”
nor accept an interpretation which would widen the scops of Hindi, he
resigned from the committee®.

A second issue on which there was acute difference of opinion related
to the use of numerals. The decision to adept international numerals was
opposed by several members.

The proposals of the special committee were not apparently accepted by
the party. The search for general agreement continued and the Drafting
Committee made a further attempt to evolve such a formula. This time
the committee framed a more elaborate scheme and in placing it before
the party meeting Ambedkar described it as expressing the greatest common
measure of agreement. The draft incorporated the earlier decision that
Hindi with the Devanagari script would be the official language of the
Union ; but with the proviso that for a period of fifteen years English would
continue to be used for all official purposes of the Union. During this
period of fifteen years the President could by order make provision for
the use Of Hindi along with English for any specific purpose: and after
the expiry of fifteen years Parliament could provide for the continued use
of English for particular purposes. A Commission was to be appointed
five years after the commencement of the Constitution, with representatives

^The Hindu (Madras) August 13, 1949.

X. A. Deb„ Vd[.JX, p. 1456.

THE OFFICIAL LANGUAGE

793

of the different regional languages^ to make recommendations as to the
progressive use of Hindi, the restrictions to be imposed on the use of
English and the choice of numerals to be used for any one or more purposes
of the Union. The Commission would take into consideration the industrial
and scientific advancement of India and the interests of persons holding
public office. The recommendations of the Commission were to be
considered by a Parliamentary committee consisting of fifteen members of
each House, which would report to the President.

A State could adopt any regional language or languages or Hindi as
the language to be used within the State for official purposes ; but English
would continue to be used unless the Legislature decided otherwise. The
official language of the Union was, however, to be used for correspondence
between one State and another and between a State and the Union.

All proceedings in the Supreme Court and every High Court, the
authoritative texts of all Bills, amendments, motions and resolutions to be
moved in Parliament and in State Legislatures, all Acts and Ordinances,
and all orders, rules, regulations and byelaws issued under the Constitution
should be in English.

The Drafting Committee also suggested the addition of a new article to
the Directive Principles to make it the duty of the Union to ensure the
development of Hindi by the assimilation of forms, styles and expressions
used or current in Hindustani and in different regional languages and by
drawing for its vocabulary primarily on Sanskrit and secondarily on other
languages.

These proposals were discussed at Congress party meetings held on August
22, 23 and 24 but no agreement emerged^ There was general agreement
that Hindi with the Devanagari script would be the recognized official
language, but all other matters, particularly the arrangements for the
transition, the duration of the transitional period and the question of the
numerals continued to evoke strong controversy.

Debate on the language issue continued. Munshi and Gopalaswami
Ayyangar between them hammered out detailed draft provisions, for
inclusion in the Draft Constitution. These mainly followed the proposals
formulated earlier by the Drafting Committee, but their discussion brought
agreement no nearer. On the question of numerals it was reported that
members from South India expressed themselves strongly and threatened that
if Devanagari numerals were “foisted on them” the provision in the
Constitution to that effect would remain a dead letteri. A vote was eventually
taken ; the result was 74 on either side. The members in favour of Hindi
claimed that there were 75 on their side when counting commenced. Even
so it was felt that the margin of difference was so narrow that it would be

‘These regional languages were to be listed in a schedule.

“Tftc HiWa (Madras), August 24, 1949.

August 25, 1949.

794

FRAMING OF INDIA’S C^NSHTUTION

extremely unwise to carry through a decision on a matter of such importance
on the strength of such a precarious majority. One solution put forward
was that a high powered committee of three top leaders of the Congress
should decide the issue. This also did not prove acceptable’.

Even the Congress leadership was divided on the issue. While Nehru,
the Prime Minister, was in favour of the proposals of the Drafting Committee,
Ravi Shankar Shukla, the Chief Minister of the Central Provinces, was in
the opposite camp. He wrote a letter to the Chairman of the Drafting
Committee on September 1, 1949. Shukla did not object to the transitional
period of fifteen years : nor did he demur to the use of the international
form of numerals for so long as English itself was an official language. But
he strongly advocated the replacement of English by Hindi as soon as possible
and thought therefore that the Central Government and Parliament should
effect such substitution even within this transitional period. He said :

If our Southern India friends wish to use (the) English language for fifteen
years one should have no quarrel with them. But let English not continue
to be an imposition on the rest of India.

Shukla also considered that the appointment of a Language Commission
would be a reactionary step ; a commission consisting of representatives of
so many languages could never solve the problem and would only delay and
retard the introduction of Hindi as the official language of the Union. Tlie
schedule of languages to be included in the Constitution would also be
“wholly unnecessary in the precarious conditions in the country”®.

The Munshi-Ayyangar draft again came up before the Congress party on
September 2. After a heated discussion votes were taken on the issue whether
or not the draft should be moved in the Constituent Assembly as an official
proposal on behalf of the Drafting Committee. There was the expected
cleavage in voting ; while members from Madras, Bombay, Gujarat, Bengal
and Assam voted for its adoption as the official draft, most of the members
present from the United Provinces. East Punjab, Central Provinces, Bihar
and Rajasthan voted against it. The result was a tie, seventy-seven votes being
cast on each side®. It was not possible to postpone any further the discussion,
as the Constituent Assembly was due to complete its labours. The decision
was therefore taken that the question would not be decided on a party basis,
that the Munshi-Ayyangar draft would be moved by Ambedkar, Munshi and
Gopalaswami Ayyangar. in their personal capacities ; and all members would
be free to move amendments and vote as they pleased in the Assembly.

The Assembly commenced the debate on the official language on September
12 in a tense atmosphere. According to a newspaper report,

the presence of 210 members in a House of about 290 is indeed a record,
perhaps the first occasion when it was so in the history of the Constituent

^The Hindu (Madras), August 29, 1949.

^Select Documents TV, 13(ii), pp. 619-22.
iTfndK (Madras), September 3, 1949.

THE OFFICIAL LANGUAGE

795

Assembly, and must be attributed to the success that bas ' attended the
energetic whips sent out by different groups during the last fortnight to
different parts of the country urging all members to be present to
participate in the debated

More than three hundred amendments had been tabled. Feeling was
running so high that the President found it necessary to make a special plea
for sobriety and moderation. He said :

Let us not forget that whatever decision is taken with regard to the
question of language, it will have to be carried out by the country as
a whole. There is no other item in the whole constitution of the country
which will be required to be implemented from day to day, from hour to
hour, I might say from, even minute to minute in actual practice. Therefore
members will remember that it will not do to carry a point by debate
in this House. The decision of the House should be acceptable to the
country as a whole. Even if we succeed in getting a particular proposition
passed by a majority, if it does not meet with the approval of any
considerable section of people in the country — either in the north or in
the south — the implementation of the constitution will become a most
difficult problem. Therefore when any member rises to speak on this
language question I would request him most earnestly to remember that
he should not let fall a single word or expression which might hurt or
cause offence. Whatever has to be said should be said in moderate
language so that it might appeal to reason and there should be no appeal
to feelings or passions in a matter like thisl

Gopalaswami Ayyangar, introducing the amendment, pointed out that the
proposals embodied in the draft amendments put forward by him represented
a compromise between opinions not easily reconcilable. Even the unanimous
conclusion to adopt Hindi “in the long run” as the declared official language
represented a compromise. On the ultimate abandonment of English, he
observed :

I for one did not easily reach the conclusion., .because it involved our

bidding goodbye to a language on which I think we have built and

achieved our freedom. Though I accepted the conclusion at the end that

that language should be given up in due course and in its place we

should substitute a language of this country, it was not without a pang that
I agreed to that decision.

He then proceeded to deal with the need for a gradual transition :

While we could recognize Hindi as the language for the official purposes
of the Union, we must also admit that that language is not today
sufficiently developed. It requires a lot of enrichment in several directions.
It requires modernization, it requires to be imbued with the capacity to

■ ''^The ifmdn (Madras), September 13, 1949.

>C. :A, Dek,YoL IX, p. 1312.

796

FRAMING OF INDIA’S CONSTITUTION

absorb ideas, not merely ideas but styles and expressions and forms of
speech from other languages.

Defending the proposals for the permanent use of international numerals
he said;

These forms of numerals originated in our country and therefore we should
be proud to continue the almost universal use of these numerals ... as a
part of the future language set-up in this country. Secondly the whole
world, perhaps with one or two exceptions, has adopted these numerals.
It is but right that we should keep in step with the whole world, or it
should really be the other way, the whole world is already ready to keep
in step with us who really gave these numerals to the world.

He then made a reference to the compromise devices adopted, particularly
in regard to numerals. In the first place the Union Government could at
any time direct that the Devanagari numerals could, in addition to
international numerals, be adopted for specified official purposes ; and again
the Language Commission could make recommendations on the subject of
numerals ; it could even recommend that the international form of numerals
be replaced altogether by the Devanagari form of numerals.

Gopalaswami Ayyangar’s speech was a sober and well-reasoned defence
of his proposal and his point of view on the language issue was that revivalist
sentiment should be eschewed and a practical approach adopted.

We have to adapt the instrument which would serve us best for what we
propose to do in the future^

The amendments and some of the speeches displayed considerable feeling ;
but a close perusal of the debates shovsrs that in spite of strongly held views,
the general attitude of the principal protagonists of Hindi was gradually
modifying in favour of a compromise. On several crucial issues unanimity
had already been reached and the main proposals embodied in the resolution
found widespread approval. The most important feature of the resolution
was the formal declaration that Hindi in the Devanagari script would be
the official language of India ; and to meet the point of view of those who
following Gandhi’s leadership were still feeling strongly in favour of a
composite Hindustani language, with both the Devanagari and the Urdu
scripts, the articles moved by Gopalaswami Ayyangar contained the special
directive laying down as the duty of the Union to secure the enrichment of
Hindi by assimilating the forms, style and expressions used in Hindustani
and in the other languages of India^ and drawing, wherever necessary or
desirable for its vocabulary, primarily on Sanskrit and secondarily on other
languages. Even so there was great disappointment expressed by some
members that the term “Hindustani” together with the Urdu script was

■C. A. Deb., Vol. IX, pp. 1317-21.

“The schedule mentioned 13 languages — Assamese, Bengali, Canarese, Gujarati,
Hindi, Kashmiri, Malayalam, Marathi, Oriya, Punjabi, Tamil, Telugu and Urdu.
Subsequently Sanskrit was also added.

THE OFFICIAL LANGUAGE

797

dropped. Abul Kalam Azad gave a cogent expression to this sense of
disappointment. He described, it as the result of , iiarroW“i 3 iiodefdiiei^,
pettiness and density of mind and refusal to accept higher, nobler and purer
thoughts:

Of all the arguments employed against “Hindustani” the greatest emphasis
has been laid on the point that if “Hindustani” is accepted, then Urdu
also will have to be accommodated. But I would like to tell you that by
accommodating Urdu the heavens will not come down. After all Urdu
Is one of the Indian languages. It was born and bred and brought up in India
and it is the mother-tongue of millions of Hindus and Muslims of this
country. .. Why should we allow our minds to be prejudiced to this
extent against one of the languages of our country ? Why should we
allow ourselves to be swept away by the currents of our narrow-mindedness
to such a great distance ?

It was this issue that claimed primary attention and aroused much
bitterness. Azad himself however recognized that the cause of Hindustani
was as good as lost; and he contented himself with expressing the hope that
the prevailing atmosphere of narrow-mindedness which was the result of
past misfortune would not last long and that a broadbased national language
would emerge. He said ;

It is still in the hands of our countrymen not to allow the shape of Hindi
to be deformed : and instead of making it an artificial language let it
remain an easy and intelligible medium of expression\

Jawaharlal Nehru also referred to this issue. He recalled that Gandhi
used the word “Hindustani” not in any technical sense, but in the broad
sense representing a composite language which was both the language of the
people and the language of various groups in Northern India. He did not
object to the term “Hindi” but wanted to proceed wisely by making Hindi
an inclusive language, and include in it all the language elements in India
which had gone to build it up, with a streak of Urdu and a mixture of
Hindustani On the other hand, an “authoritarian” attempt to “dominate
and force down something” would fail.

You have to win the goodwill of those groups who speak, let us say, some
variation of Hindi, Urdu or Hindustani, If you try, whether you win or
not. If you do something which appears to the others as an authoritarian
attempt to dominate and force down something, then you will fail in your
endeavourl

This apical was clearly a reply to Govind Das who had earlier hinted that
if necessary he was willing to force a division, and appealed to the Assembly
that the majority vote must be accepted “respectfully and without any
bitterness”. But the speech of Govind Das, as of Purushottamdas Tandon,

A. Deb., VoL IX, pp. 1452 fl.
nbid., pp. 1409

798 FRAMING OF INDIA’S CONSTITUTION

contained some indication of a mood of conciliation. Both of them agreed
to a transitional period of fifteen years ; but the point they stressed was that
fifteen years should be the maximum period for the replacement of English
by Hindi ; and in order to achieve this, Tandon suggested that the Language
Commission should be appointed before the expiry of five years, so that the
Government might be in a position to direct that on the expiry of five years
some changes in regard to the use of Hindi might come into effect. In regard
to the use of Hindi for State purposes and in courts, they suggested that
where Hindi was already being used, there should be no reversion to English.

On the vexed question of numerals, Purushottamdas Tandon made another
compromise suggestion ; let both Indian and international numerals be
recognized for fifteen years, and let the President, that is the Government,
decide from time to time the purpose for which each set of numerals was
to be used’.

Discussion on the language is.sue went on for two days — September 12
and 13 — and the forenoon of September 14. The Assembly met for the final
voting on this issue at 5 p.m. on September 14 when Raghu Vira interrupted
his speech with the announcement that a satisfactory arrangement had been
reached on the different view-points on the question of numerals ; on his
suggestion closure was accepted. At that point Munshi asked for half an
hour’s postponement, because while an agreement had been reached, one or
two small points were outstanding and amendments were being drafted and
they would take some minutes. The Assembly again met at six in the evening.
Munshi moved the agreed amendment which made four changes in the
proposals as moved by Gopalaswami Ayyangar. The first of these empowered
Parliament, after the transitional period of fifteen years as in the case of
English, to provide by legislation for the use of the Devanagari form of
numerals for such purposes as might be specified in the law. The second
change permitted the use of Hindi or any other State language with the
consent of the President in the proceedings of the High Courts, though not
for judgments, decrees and orders. Munshi’s third proposal was to enable
State Legislatures to prescribe the use of a language other than English for
“Bills, Acts, Ordinances and orders having the force of law”; but English
translations were required to be published and they were to be treated as
authoritative texts. Finally, Sanskrit was included as one of the languages
to be mentioned in the schedule. The effect of inclusion of a language in
the schedule would merely be that persons representing these languages were
to be appointed to the Language Commission^

After these amendments had been moved by Munshi, practically all the
amendments, numbering three hundred and over, which had been moved,
were withdrawn. Apart from the proposal moved by Gopalaswami Ayyangar,

■C. A. Dei., Vol IX, p. 1451.
‘IMd.. p. 1467.

THE OFFICIAL LANGUAGE

799

as modified by Munshi, only a small number of amendments were pressed.
One of these suggested the substitution of “Hindustani” for Hindi as the
official language of the Union, and another proposed to add Urdu as a second
script in addition to Devanagari. A third amendment implied that for more
than fifteen years English would be the sole official language ; the method of
substitution of English by Hindi was to be laid down by the President ^ter
fifteen years. A fourth amendment wanted the deletion of the proviso
which permitted the use of Hindi in addition to English during the
transitional period. There were two amendments by Z. H. Lari one of
which wanted the State to provide primary education in the mother-tongue
if thirty students of a school or eight students in a class made a
demand for it.

Three amendments were pressed by Brajeshwar Prasad, Shibbanlal Saxena
and Naziruddin Ahmad. The first two wanted Hindi completely to replace
English in five years, except for certain specific purposes to be determined
by the Central Government. On the other hand, Naziruddin Ahmad wanted
English to continue indefinitely — ^for fifteen years in the first instance and
thereafter until an all-India language was evolved of sufficient “vigour,
richness and flexibility” to serve the functions of the Union. He did not
automatically recognize Hindi as the successor language ; but he wanted first
the division of India into linguistic Provinces and the introduction of mass
literacy. The choice of a permanent Indian language would be decided in
the light of the views expressed by a Language Commission, the opinion of
the Houses of Parliament, and the report of a Parliamentary committee
expressly constituted to consider the language issue. Naziruddin Ahmad also
moved an alternative amendment suggesting Bengali as the official language
of India. Hukam Singh wanted that the official language of a State should
be the language spoken by a majority of its population. Purushottamdas
Tandon pressed two amendments. He wanted both the Indian and the
international form of numerals to be recognized ; and the Language
Commission to be appointed before the expiry of five years so that
decisions based on its report could become operative immediately after
five years. All these amendments were however negatived and the
proposals put before the Assembly by Gopalaswami Ayyangar, as
amended by Munshi, were adopted.

In the Draft Constitution as revised by the Drafting Committee the language
provisions were placed in Part XVII consisting of articles 343 to 351. The
Eighth Schedule contained the list of languages.

During the third reading of the Constitution some members from the Hindi
areas again emphasized that the period of fifteen years fixed for the full
adoption of Hindi as the national language of the country was too long.
They wanted to replace English as early as possible : Raghu Vira, suggesting
the boycott of English, said :

I am afraid that in the next fifteen years the roots of English influence

800

FRAMING OF INDIA’S CONSTITUTION

: : ia this 'country would have become- twice as strong as the English people
were able to make in their rule extending over a period of hundred and
fifty years. The effect of ail this is that the reins of power would remain
in the hands of the English-knowing classes\

Govind Das again pointed out that passing the Constitution in a foreign
language after the end of our slavery and attainment of independence would
for ever ‘^remain a blot on us”l

Commenting on the decision reached by the Assembly, Rajendra Prasad
said in his concluding speech :

I look upon this as a decision of very great importance when we consider
that in a small country like Switzerland they have no less than three official
languages and in South Africa two official languages. It shows a spirit of
accommodation and a determination to organize the country as one nation
that those whose language is not Hindi have voluntarily accepted it as
the official language. There is no question of imposition now. English
during the period of British rule, Persian during the period of the Muslim
Empire were court and official languages. Although people have studied
them and have acquired proficiency in them, nobody can claim that they
were voluntarily adopted by the people of the country at large. Now
for the first time in our history we have accepted one language which
win be the language to be used all over the country for all official
purposes ; and let me hope that it will develop into a national language
in which all will feel equal pride while each area will be not only free,
but also encouraged to develop its own peculiar language in which its
culture and its traditions are enshrined. The use of English during the
period of transition was considered inevitable for practical reasons and
no one need be despondent over this decision, which has been dictated
purely by practical considerations. It is the duty of the country as a
whole now and especially of those whose language is Hindi to so shape
and develop it as to make it the language in which the composite culture
of India can find its expression adequately and nobly®,

NOTE ON AMENDMENTS

Articles 350-^ and 350-B: These two new articles were added to the
Constitution by the Constitution (Seventh Amendment) Act, 1956. Article
350-A contained a special directive urging every State and local authority
to provide adequate facilities for instruction in the mother tongue to children
belonging to linguistic minority groui^ ; and empowered the President (i.e.
the Central Government) to issue such directions as he considered necessary
or proper for the provision of such facilities.

A, Deb,, VoL XI, p. 714.
p. 612.
p. 991

THE OFFICIAL LANGUAGE

801

Article 350-B made it incumbent on the President to appoint a Special
Officer for linguistic minorities, whose duty would be to investigate all matters
relating to the safeguards provided for linguistic minorities and to report to
the President. These reports were to be laid before Parliament and sent
to the States concerned.

Eighth Schedule: The Constitution (Twentyi-first Amendment) Act,
1967. included “Sindhi” in the list of the languages specified in the
Eighth Schedule.

EMERGENCY PROVISIONS

One of the major issues to engage the attention of the Constituent Assembly
was the inclusion of adequate provision in the Constitution which would
enable unified, speedy and effective action in situations of an emergent nature.
What increased powers should the Centre exercise when the country is faced
with the threat of external aggression or internal -revolt? Should the President
at the Centre, and the Governors in the States, be vested with authority
and powers to act swiftly in such situations, acting, if need be, in their
discretion and without relying on the advice of their Councils of Ministers
whom in normal times it is their constitutional duty to consult? To appreciate
the standpoint of leading members of the Constituent Assembly many of
whom in the period following the inauguaration of provincial autonomy under
the 1935 Constitution, had occupied important positions as Ministers in the
Provinces, it is essential to indicate briefly the background of the emergency
powers as exercised in the past.

The instalments of constitutional reforms conferred on India in 1909 and
1919 were hedged in with numerous safeguafdis to protect interests that the
British Government considered to be vital, and ample reserve powers were
vested in the Governor-General and the Governors of Provinces. The
Central Government, which meant the Governor-General and his Executive
Council, was a purely official organization answerable to the Secretary of
State for India in London and working in subordination to him; the
Governor-General in Council had full powers of superintendence, direction
and control over the Provinces and was consequently competent to enforce
his policies, and exercise direction, both in normal times as well as in periods
of emergency such as war or internal disturbance.

The scheme of provincial autonomy, with responsible ministries as envisaged
in the Government of India Act, 1935, came into force on April I, 1937 :
and this scheme was accompanied by a constitutional delimitation of
legislative and executive jurisdictions between the Federation and the units.
With the creation of autonomous Provinces, two problems arose : the first,
to enable the Centre to direct and control Provincial policies and actions in
an emergency such as war or internal disturbance. The second problem was
to make provision for carrying on the administration if the machinery for
ministerial government failed to function.

For situations such as these the Government of India Act, 1935, had the
answers. The Act provided that in the event of the security of India or of
any part of the country being threatened by war or internal disturbance.

EMERGENCY PROVISIONS

803

provincial autonomy as envisaged in the Constitution would be subordinated
to the requirements of the emergency situation; and the Federal Legislature
was armed with power to make laws on all matters, even those in the
Provincial List where in normal times exclusive power would vest in the
Provincial Legislatures'. In such an emergency, the Central Government had
also the power to control the exercise cf executive authority in the Province
by issuing directions : and where necessary, the Centre would itself assume
executive power even in Provincial matters’.

The Act also contained other provisions enabling the Governor-General and
the Governors to deal with situations arising out of the failure or the
breakdown of the constitutional machinery. Section 93 of the Act authorized
the Governor of a Province, if he was satisfied that its government could
not be carried on “in accordance with the provisions of the Act”, to declare
by proclamation that his functions would to such extent as he considered
necessary be exercised in his discretion : this meant that the Governor would
no longer be required to consult his Council of Ministers’. The Governor
could also through such proclamation assume to himself the powers vested
in any Provincial authority including the Ministry and the Legislature, and
suspend the operation of such cf the provisions of the Act as he considered
necessary. Similar powers at the Centre were conferred on the Governor-
General in the federal scheme, but this never came into operation and the
Central Government continued to be a purely official set-up. .*•'

While these were the constitutional arrangements, certain points must be
borne in mind to understand the psychology of the framers of the new
Constitution. Winston Churchill, in a devastating attack on the 1935
constitutional proposals before they were finally embodied in a statute, had
described the sweeping character of the Governor-General’s powers as likely
to rouse Mussolini’s envy. Linlithgow, the Viceroy, taking advantage cf the
fact that Central administration was in accordance with the Government of
India Act of 1919, had in practice reduced the Government of India to a
collection of a number of departments over whose decisions and policies he
had the finaP voice. For months after the general election in 1937, Gandhi
and the Congress leaders challenged the right of Governors to interfere with
the economic and social programmes of the Ministers through resort to the
special powers vested in them by the Constitution.

It is against such a background that the primary question was considered
by the Constituent Assembly in 1947 in the early stages of constitution-making
whether the President should have any special personal powers to act

^Government of India Act, 1935, s. 102.

mid., ss. 126 and 126-A.

sWhen after the declaration of World War 11 the ministries in several Provinces
resigned and the Governors took over the administration under this section, the
Council of Ministers as well as the Legislatures were suspended. The Governor
carried on the administration through the civil service.

804

FRAMING OF INDIA’S CXINSTITOTION

iadependently of his Ministry for such purposes as the prevention of a grave
menace to the peace and tranquillity of India or of any part. The Union
Constitution Committee at its meeting on June 8 decided that he should not
have any such special powers and that all his functions would be exercised
only on the advice of his Council of Ministers acting in responsibility to the
Legislature*.

There was also a secondary question: was the Governor of a State to
possess the authority to declare an emergency on his own initiative and
without previous consultation with his Ministers ; or was he merely to report
to the President the existence (or the grave threat) of an emergency, leaving
it to the President to take the necessary course?

The question of emergency powers for a Governor was discussed by the
Provincial Constitution Committee at its meeting held on June 9, 1947 ; and
following these discussions, the matter was considered again at a joint meeting
of the Union Constitution Committee and the Provincial Constitution
Committee the next day. The decision of this meeting was that if the
Governor apprehended a grave menace*to the peace and tranquillity of a
Province or of any part of it, he would send a report to the President and
further action would be taken by the President, i.c., the Government at the
Centre. The Provincial Constitution Committee accepted this view. It was
further made clear by the committee that in sending his report it would not
be necessary for the Governor to get the concurrence of his Ministers®,
“"rhe clause as drafted by the Provincial Constitution Committee in its report
however merely authorized the Governor to make a report to the President
if, in the discharge of his special responsibility for the prevention of a grave
menace to the peace and tranquUli^ of the Province or of any part, he was
unable to get the necessary legislation passed by the Provincial Legislature. «
The President would then take appropriate action under his emergency
powers®.

There was no reference at this stage to an emergency situation containing
a threat to peace and order of the country as a whole. Nor was there any
provision either in the report of the Provincial Constitution Committee or
in the Report of the Union Constitution Committee conferring any emergency
powers either on the President or on a Governor to take any action on
the occurrence of an emergency situation. The Report of the Provincial
Constitution Committee contained a clause conferring a special responsibility
on the Governor for the prevention of ai^‘ grave menace to the peace and
tranquillity of the Province or any part thereof ; and it was also provided
that in the discharge of his special responsibility the Governor should act
in his discretion. Vallabhbhai Patel was however very specific that this did

'Minutes. Select Documents II, 16, p. 555. See also chapter on Union Executive.

“Minutes of the Provincial Constitution Committee. June 9 and 11, 1947, and
joint meeting, June 10, 1947. Select Documents II, 22 and 19, pp. 650, 651 and 610.

^Select Documents 11, ■p.

EMERGENCY : PROVISIONS

not mean that the Governor could ignore his Ministers or act against their
advice. He said : • . • - .

The committee 4o settling this question intended to convey that the
Governor shall have only the authority to report to the Union President
about the grave situation arising in the Province which would .involve a
grave menace to the peace of the Province. It was not their intention
that , this power or authority is to be exercised by the Governor which- may
perhaps bring a conflict between the Ministry and the Governor. The
Governor having no control over the services/ the authority of the
administration entirely vests in the Ministry and therefore, although there
•was considerable difference of opinion on this question on account of the
prevailing conditions in the country-^some thought that it would"' be
advisable under the present peculiar unsettled conditions in the country
to give some, limited powers to the Governor— eventuaEy the. committee
came to the conclusion that it would not be workable, that it would
create deadlocks, and therefore, the proper course would be to limit his
powers to the extent of authorizing him to report to the President of the
Union. What steps or what authority the President of the Union- exercises
would- be a matter for the Union Powers Committee to provide in the
Union Constitution. But, so far as the Provincial Constitution is
concerned, it;;^ was agreed that this limited power of reporting* only should
be given to the Governor^j

When tie of the Provincial Constitution Committee came up for

consideration in the Constituent Assembly, K. M. Munsfai moved an
amendment which considerably altered this position. This amendment was
designed to enable a Governor, if he was satisfied in his discretion that a
grave situation had arisen which threatened the peace and tranquillity of the
Province and it was not possible to carry on the government in accordance
with the advice of his Ministers, to assume to himself by a proclamation
all or any of the powers vested in any provmcial body or authority.- The
proclamation was to be communicated to the President immediately for
appropriate action under his emergency powers and would cease- to operate
after two weeksl It was expected that the President would take suitable
action within this period.

. Hriday Nath Kunzru opposed the conferment of such drastic powers on the
Governor and moved an amendment limiting the Governor’s functions to
making a report to the President : it would be for the' President to taka
such action as he considered appropriate on the report under the emergency
powers vested in him. Govind Ballabh Pant supported the principle of this
amendment, also referred to the administrative difficulties that would
be created by giving powers to the Governor to act on his own initiative

i>^k, VoL

806

FRAMING OF INDIA’S CONSTITUTION

over the heads of his Ministers. The civil services would no longer be under
the control of the Governor as they were in the past; and the exercise of
over-riding powers by the Governor might impair the integrity of the services^
Vallabhbhai Patel, the Chairman of the Provincial Constitution Committee,
who moved its report in the Assembly, accepted Munshi’s amendment which
was later adopted by the Assembly^

The memorandum of _.M^y 30, 1947, on the principles of the Union
Constitution prepared by the Constitutional Adviser, did not contain any
specific provision relating to an emergency situation, but it conferred a
special responsibility on the President for the prevention of a grave menace
to the peace or tranquillity of the Union or of any part of it, and in so far
as this special responsibility was involved, the President could act on his own
personal authority, overruling or where necessary ignoring his Council of
Ministers. Some members of the Union Constitution Committee had suggested
the conferment of emergency powers on the Central Government. In the
joint memorandum submitted by Gopalaswami Ayyangar and Alladi
Krishnaswami Ayyar, there was a clause conferring, on the Centre special
powers in an emergency which read:

If the President declares, by a proclamation, that a grave emergency exists
which threatens the security of India, whether by war or internal
disturbance, the Federal Parliament will have power to make laws for a
unit or any part of a unit with respect to any of the matters within the
exclusive competence of the unit Legislature. This power will, however,
not restrict the power of a rniit Legislature to make any law which it
has power to make, but if any provision of such a unit law is repugnant
to any provision of a Federal law made under this paragraph, the
Federal law will prevail and the unit law will to the extent of the
repugnancy be void*.

K. T. Shah in his memorandum had proposed conferring on the President
the power to issue an Ordinance in the event of a national emergency with
the consent of the Legislature and the power to suspend the Constitution
in an emergency for three months in any part of the country^
K. M. Panikkar in his reply to the questionnaire on the functions of the
President, had suggested that he should be “responsible to see that the
integrity of the Constitution was maintained and that necessary and sufficient
action was taken to meet any emergency that might arise in the Union in
the day-to-day working of the administration. In Syama Prasad Mookerjee’s
view, in case of a grave emergency and in matters of conflict between two
units, the President on the advice of the Union Cabinet should have all the

■C. A. Deb., Vol. rv, pp. 798 and 810.

mid., pp. 817-8.

^Memorandum on the Union Constitution by Alladi Krishnaswami Ayyar and
N. Gopalaswami Ayyangar. Select Documents II, 15 (vi), p. 546.

*Select Documents II, 15(i), p. 469.

EMERGENCY PROVISIONS

807

powers necessary, including the power to suspend or annul the acts, executive
or legislative, of a Provincial Govemmenf. The Report of the Union
Constitution Committee did not, however, contain any provision for the
assumption of special powers in an emergency.

When the report was considered in the Constituent Assembly, K. Santhanam
drew attention to the fact that, while the clause in the Provincial Constitution
Committee’s Report had been adopted authorizing the Governor to take
action in an emergency for two weeks, and to report to the President when
he issued a Proclamation of Emergency, the Unico Constitution Committee’s
Report omitted to confer any powers on the President to act in pursuance of
such report from a Governor. He suggested the inclusion of a separate
section dealing with “emergency powers” comprising the following
provisions;

If, at any time, -the Governor of a Province is satisfied that a situation
has arisen in which the government of the Province cannot be carried on
in accordance with the provisions of this Constitution and has so reported
to the President of the Federation, or if the President of the Federation
is satisfied that the normal government of the Province has broken
down, he may take any action which he considers necessary, including —

(1) suspension of the Provincial Constitution ;

(2) promulgation of an Ordinance to be applicable to the Province ; and

(3) issuing of orders and instructions to the Governor and other ofiicials
- of the Province. -

When any such action is taken by the President he shall report to the
Federal Legislature and unless his action is ratified by both Houses of
Legislature within a period of six months from the date of his first taking
action the normal Constitution of the Province shall be restored. The
situation shall be reviewed by the Federal Legislature and continuation,
if necessary, of the emergency action approved every six months.

TTie President shall restore the normal Constitution as soon as he is
satisfied that the emergency has ceased to existl

Gopalaswami Ayyangar admitted the need for some provision in the Union
Constitution defining the powers of the Central Government in the event
of an emergency in a Province: but the question whether the powers to be
vested in the President should be so all-compreihensive as suggested by
Santhanam required serious consideration. The substance and language of
the provision to be made for this purpose, he suggested, should be considered
by those who would frame the text of the Constitution. On this assurance
Santhanam’s amendment— as well as a similar one moved by B. M. Gupte—
was withdrawn’.

^See Statement of replies to the questionnaire issued by the Constitutional Adviser,
March 17, 1947. Select Documents 11, 15(ui), p. 529.

^C. A. Deb., Vol W, p. 1006.
pp. 1009-10.

808:

FRAMING OF INDIA’S CONSmUTION

The E>raft Constitution prepared by the Constitutional Adviser in October
1947 contained three clauses, (clauses 160, 182 and 191) dealing with
emergency situations, and these covered considerably more ground than the
previous discussions. Following the lines of the Government of India Act,
1935, these clauses provided for greatly increased powers to the Centre during
war or other national emergency. A provision was also included for dealing
with an emergency of a purely provincial dimension. Draft clause 160
clothed in legal language the substance of Munshi’s amendment already
accepted by the Assembly. It made specific provision dealing with a situation
in which

the Governor of a Province is satisfied that a grave emergency has arisen
which threatens the peace and tranquillity of the Province and that it
is not possible to carry on the Government of the Province with the advice
of his Ministers in accordance with the provisions of this Constitution.

In such a situation the Governor could exercise his functions in his
discretion and if necessary supersede his Council of Ministers and other
provincial authoritiesh

Qause 182 dealt with two separate matters. It recognized the power of
the President to declare by a proclamation of emergency, if the situation
made such a step necessary, that the security of India was threatened by war
or internal disturbancel It also conferred on the President the power, on
receipt of a proclamation issued by the Governor, himself to issue a
proclamation declaring that a grave emergency existed whereby the peace
and tranquillity of the Province was threatened. In either event, the Federal
Legislature became vested with the law-making power, in respect of provincial
subjects, in addition to the Federal and concurrent subjects. These
proclamations were to be placed before Parliament and would cease to
operate after six months unless approved by Parliament.

Clause 191 vested in the Federal Government power to issue directions to
the Provinces when either type of proclamation was in force’. The clause also
enabled the Federal Legislature to confer powers and impose duties on the
Federation and on federal officers and authorities for the administration of
provincial subjects. In other words, through federal law, the Federal
Government was empowered to take over the administration even in the
provincial field.

• The Drafting Committee redrafted and rearranged these provisions in the
Draft Constitution of February, 1948. In Part VI of the Draft Constitution
as settled by the committee a chapter was included containing one article
(article 188) dealing with a grave emergency situation in a State when peace
and tranquillity were threatened and it was not possible to carry on the
government of the Province in accordance with the provisions of the

'^Select Documents III, l(i% clms» 160, pp, 65-6,
clause 182, pp. 75-6.
clause 191, p, 79,

EMERGENCY PROVISIONS

809

Gonstitution. This article was in substance similar to clause 160 in the
Constitutional Adviser’s draft, embodying the substance of Munshi’s proposal
as approved by the Constituent Assembly*. It would enable the Governor
to suspend his Ministry and Legislature and assume the reins of the State
Government “in his discretion” for a period of two weeks.

The powers of the Union Government in a situation of emergency were
included by the Drafting Committee in a separate part of the Draft
Cohstitution consisting of six articles (articles 275 to 280)1 Here the
committee provided for the two separate situations envisaged in the Draft
of the Constitutional Adviser —a national emergency affecting the security
of the Union or any part of it, and an emergency situation confined to a State.
Draft article 275 empowered the President, when he was satisfied that there
was a grave emergency whereby the security of India was threatened, whether
by war or domestic violence, to issue a Proclamation of Emergency making
a declaration to that effect. Such -a proclamation had to be laid before each
House of Parliament and would cease to operate after six months unless
approved by resolutions of both Houses of Parliament. The draft article
made it clear that a Proclamation of Emergency could be issued even before
the actual occurrence of war or domestic violence if the President was
satisfied that there was imminent danger, thereof.

The intention of the Drafting Committee was that in a national emergency
of this kind, the- Centre should have full power to control and direct all
aspects of administration and legislation throughout India. Accordingly,
linked with article 275 was article 227 in the chapter, on the distribution
of legislative powers empowering Parliament, on the issue of such a
Proclamation of Emergency, to make laws for the whole or any part of India
with respect to State list matters. A law made in the exercise of this power
would cease to have effect on the expiration of a period of six months after
the proclamation ceased to operate. The power of the State Legislature to
make laws on these subjects would continue, but subject to Parliament’s
power. . • • •

Draft article 276 gave the Union Government full power during a period
covered by a Proclamation of Emergency to issue directions to State
Governments as to the manner in which their executive authority was to-be
exercised. This article also made it legal for Parliament to entrust functions
with respect to State subjects to the Union Government and its officers.

Draft article 277, following the recommendations of the Expert Committee
on financial provisions, empowered the Union Government in such an
emergency to vary the provisions cf the Constitution relating to the
distribution of certain heads of revenue between the Centre and the- States*.

'Select Documents III, 65 art. 188, pp. 587-8.

Hbid., art. 275 to 280, pp. 622-5. .

^See also Report of the Expert Committee on Financial Provisions. Select
jDocHmertt# III, 4, pp. 280-1.

810

FRAMING OF INDU’S CONSTITUTION

Draft article 278 dealt with the powers of the Union Government when a
proclamation was issued by the Governor of a State declaring that an
emergency situation had arisen in which peace and tranquillity were
threatened and the government of the State could not be carried on in
accordance with the provisions of the Constitution. On receipt of such a
proclamation, the President would be given the power of superseding the
State Legislature and Ministry. He could issue a proclamation assuming to
himself the powers of the State Government or any State authority, other
than the High. Court, and declaring that the powers of the State Legislature
would be exercisable only by Parliament. A proclamation so issued by the
President could also make incidental or consequential provisions, including
provision for the suspension of the operation of any of the articles of the
Constitution in that State.

The proclamation of the President was required to be placed before
..Parliament and would cease to operate after six months ; but if resolutions
in that behalf were passed by both Houses of Parliament, the proclamation
/would continue in force for a period of one year at a time. No such
(proclamation could continue beyond a total period of three years. It was
also laid down that during the period in which such a proclamation was
in force. Parliament could confer functions and impose duties on the Union
Government as well as its officers in respect of State subjects ; and that when
Parliament was not in session the President could promulgate Ordinance.
The effect of these provisions was that in such a situation the State Legislature
and executive could be superseded and replaced by Parliament and the Union
Government.

Draft article 279 gave power to the Union and State Governments, when
a Proclamation of Emergency was in force declaring a grave threat to the
peace and tranquillity of India or any part of the country to act in
contravention of the fundamental rights provisions concerning freedom of |
speech and expression, freedom of assembly, freedom of movement, freedom i
to form associations and unions ; also the right of residence, the right to
acquire and hold property and to practise any profession, trade or business.

Draft article 280 empowered the President to declare by order that the
'■right to move the courts for the enforcement of fundamental rights would
remain suspended during the period when a Proclamation of Emergency was
in force and for a period not exceeding six months thereafter.

Commenting on the emergency provisions in introducing the Draft
Constitution on November 4, 1948, Ambedkar said:

All federal systems including the American are placed in a tight mould
of federalism. No matter what the circumstances, it cannot change its
form and shape. It can never be unitary. On the other hand the Draft
Constitution (of India) can be both unitary as well as federal according
to the requirements of time and circumstances. In normal times, it is
framed to work as a federal system. But in times of war it is so

EMERGENCY PROVISIONS

811

designed as to make it work as though it was a unitary system. Once
the President issues a Proclamation which he. is authorized to do under
the provisions of article 275, the whole scene can become transformed
and the State becomes a unitary State. The Union under the proclamation
can claim if it wants (1) the power to legislate upon any subject even
though it may be in the State list; (2) the power to give directions
to the States as to how they should exercise their executive authority
In matters which are within their charge; (3) the power to vest authority
for any purpose in any officer; and (4) the power to suspend the
financial provisions of the Constitution. Such a power of converting i
itself into a unitary State no Federation possesses. This is one point of
difference between the Federation proposed in the Draft Constitution and
all other Federations we know of\ ■ i ■

A new point was raised by some ‘representatives of the princely States
to safeguard their interests in the event of aggression from outside their
boundaries or internal violence. V. T. Krishnamachari and a few members
from some of the princely States in a memorandum suggested, among other
things, the inclusion of an article in the Constitution specifically laying down
that it would be the duty of the Union to protect every State against external
aggression and internal violence^ The necessity for a provision to this effect
was accepted by the Drafting Committee at its meeting on March 24.
19481

The provisions relating to a situation in a State where there was a
breakdown of the constitutional provisions, and particularly those on the
respective roles of the Governor and of the Union Government and the
functions and powers to be exercised by them evoked considerable discussion
in the Drafting Committee. The Special Committee at its meeting held on
April 11, 1948, decided that consequent on the decision reached that Governors
were not to be elected but would be appointed by the President, all references
to the functions to be exercised by them in their discretion should be omitted
from the Constitution*. This meant that it would no longer be possible
for the Governor, when a breakdown of the Constitution was threatened, to
take over any functions in his discretion. Drawing attention to this aspect,
the Constitutional Adviser pointed out that it would necessitate the deletion
of article 188 of the Draft Constitution which empowered the Governor to
assume functions to be exercised in his discretion in a situation where he
felt that the government could not be carried on in accordance with the
provisions of the Constitution'.

The whole question was examined at a meeting with Premiers of Provinces

1C. A Dei., Vol. VII, pp. 34-5.

^Select Documents IV, l(i), pp. 217-20.

Hbid., IV, l(ii), pp. 368, 403.

<‘Ibid., IV, l(iii). p. 411.

Hbid., IV, l(i), p. 365.

812

FRAMING OF INDIA’S CONSTITUTION

on July 23 , 1949. The major issue discussed was whether in a “breakdown”
situation in a State the legislative authority would be carried on by the
Governor under the direction of the President or whether Parliament would
assume these powers : it was recognized that if Parliament took over the
functions of the State Legislature, it should be in a position to delegate its
legislative authority by law to the President and the President in turn to the
Governor. Govind Ballabh Pant was of the view that the Governor should
not come into the picture as an authority exercising powers in his discretion :
larmed with such power, he would be an autocrat and this might lead to
friction between him and his Ministers. This objection would not be valid
if the Governor were merely acting as the agent of the President and carrying
out the directions of the Centre. The Drafting Committee agreed to consider
these points and prepare an acceptable draft*.

In the light of these discussions, the Drafting Committee decided to amend
the emergency provisions in two important respects. First, a new article would
place on the Union the duty of protecting every State; second, the
responsibility of intervention in the administration of a State, when it was
faced with the threat of a breakdown of the constitutional arrangements,
would be exclusively that of the Union Government and the Governor would
not have any powers of his own to intervene in such a situation even for a
short period. Accordingly, on August 3, il949, Ambedkar introduced the
necessary amendments in the Assembly’. |The first of these proposed the
deletion of draft article 188 empowering the Governor in an emergency to
take over the administration of the State for a period of two weeks and
prescribing that his functions would be exercised in his discretion. The
second amendment proposed the adoption of a new article 277-A :

It shall be the duty of the Union to protect every State against external
aggression and internal disturbance and to ensure that the government of
every State is carried on in accordance with the provisions of this
Constitution.

The third amendment entirely recast article 278 dealing with the powers
of the President in relation to a State during an emergency. According to
the revised article the President could intervene in the affairs of a State if,
either on the basis of a report of the Governor or otherwise, he was satisfied
that a situation had arisen in which the government of the State could not
be carried on in accordance with the provisions of the Constitution. (From
this revised article was omitted the requirement included in the earlier draft
that there should in addition be a threat to the peace and tranquiUity of the
State.) On being so satisfied the President could by proclamation assume
to himself all the functions of the State Government or any State authority,.
He could declare that the powers of the State Legislature would bej exercised

'Select Documents IV, 15(iii), p. 697.

‘C. A. Deb: Vox. IX, p. 131.

EMERGENCY PROVISIONS

813

by or under the authority of Parliament: and make such incidental or
consequential provisions as mi g ht be necessary, including provisions for
suspending the operation of any provisions of the Constitution relating to any
body or authority. Such a proclamation would remain in operation for. two
months unless Parliament approved it by an afiBrmative resolution of both
Houses, in which case it would remain in force for six months at a time,
for a total period not exceeding three years.

The. fourth amendment which Ambedkar proposed was the insertion of a
new article 278-A which empowered Parliament to delegate its law-making
power to the President or to any other authority specified by him in ’that
behalf ; laid down that it would be legal for Parliament or the President
or other authority to whom the law-making power was delegated to confer
functions and impose duties on the Union Government or officers and
authorities of that Government ; empowered the President to authorize
expenditure from the Consolidated Fund of the State when the House of
the People was not in session, pending the sanction of Parliament; and gave
power to the President to promulgate Ordinances when the two Houses of
Parliament were not in session’.

In a long and lively discussion on these articles, anxiety was voiced by
some members lest in the name of an emergency, there should be inroads
into the autonomy of the units. H, V.^ Kamath was critical of the position
likely to be created by these amendments, since the President could thereby
intervene in a State even without a threat to peace and order, on the ground
that the government of the State could not be carried on in accordance with
the provisions of the Constitution. The President’s intervention should not
be invoked, Kamath argued, on the pretext of resolving a ministerial crisis
or of reforming maladministration in a State. For such a purpose the remedy
would lie in the dissolution of the Legislature and a fresh reference to the
electorate. Kamath was particularly critical of the provision empowering
the Union Government to intervene “otherwise than” on the report of a
Governor. He said :

The proclamation imder article 278 is issued only on rare
occasions, l.e., when the President is satisfied on receipt of a report from
the Governor or Ruler of a State... Secondly the report must satisfy
the President not merely that the government of the State cannot be
carried on in accordance with the provisions of this Constitution but also
it should satisfy him that there is grave danger to the peace and tranquillity
of the State*.

Shibban Lai Saxena supported this view as the new article 278 would reduce
provincial autonomy to a farce’. P. S. Deshmukh held that the vesting of
the power in the Union to intervene in the affairs of a State was neither in-

■C. /4. Dei., Vol. IX, p. 132.

’Ibid., pp. 140-2.

’Ibid., p. 143.

814

FRAMING OF INDIA’S CONSTITUTION

conformity with a Federation, nor would it be administratively beneficial or
practicable. It would be far better to retain the powers of the Governor
’‘and give hini such powers as we consider necessary and as were given by
section 93 of the Government of India Act, 1935”\ Hriday Nath Kunzru
maintained that the instability resulting from a large number of political
groups in a State Legislature would not justify Central intervention. If
power were given to the Centre to intervene, there was a serious danger
that whenever there was dissatisfaction in a State, appeals would be made to
the Central Government to come to its rescue and the provincial electorate
\vould be able to transfer its responsibility to the Central Government.
Kunzru added:

If responsible government is to be maintained, then the electors must be
made to feel that the power to apply the proper remedy when
misgovernment occurs rests with them. They should know that it depends
upon them to choose new representatives who will be more capable of
acting in accordance with their best interests . . . Responsible
government ... requires patience and it requires the courage to take risks.
If we have neither the patience nor the courage that is needed our
Constitution will virtually be still-born.

Kunzru urged that the Centre should intervene in a State only to protect
it from external aggression and internal commotion; and that for this purpose’
the articles enabling the President to issue a Proclamation of Emergency were
sufficient’.

There was, on the other hand, considerable support from several members
for Ambedkar’s amended proposals. Alladi Krishnaswami Ayyar. gave a
hicid explanation of these amendments. The Provincial Constitution being
a part of the Constitution of the Union, it was the duty cf the Union to
protect States against aggression, internal disturbance and domestic chaos and
to see that the Constitution was worked in a proper manner, both in the
States and the Union. If responsible gcvemment functioned properly the
Centre would not and could not interfere. “The protagonists of provincial
or State autonomy will realize”, he said,

that apart from being an impediment to the growth of healthy Provincial
or State autonomy, this provision is a bulwark in favour of Provincial
. or State autonomy because the primary obligation is cast upon the Union
to see that the Constitution iS maintained.

The salient feature of the provisions was that immediately the proclamation
was issued by the President, he would assume the executive functions in the
State. The effect of this would be that the provincial machinery having
failed, the Central Cabinet assunded responsibility; and it would be responsible
to Parliament for the proper working of government in the State, So far as

‘C. A. Deb.. Vol. IX, p. 147.
p. m.

EMERGENCY EROVISIONS

815

legislation was concerned, the primary authority would be vested in
Parliament: but having regard to the multifarious work in which Parliament
was engaged. Parliament could delegate any or all of its powers of legislation.
This power to delegate was incidental to the plenary power of sovereignty
vested in Parliament, but it was found necessary to make this point clear
since certain judicial decisions had cast doubts on it. He reminded the
Assembly that in Parliament all the units would be represented ; and he had
no doubt that

not merely the conscience of the representatives of the State concerned blit
also the conscience of the representatives of the other units will be
quickened and they will see to it that the provision is properly worked.

He also reminded the Assembly that responsible government had not been
at work in some of the units for a long time ; even suffrage was unknown
in some Indian States. It was, therefore, in the interest of the sound and
healthy functioning of the Constitution that there should be some check from
the Centre so that people might realize their responsibility and work
responsible government properly*.

Ambedkar, too, in defending the amendments, expressed the view that
before suspending the Constitution in a State, the Central Government would
first give a warning to the State concerned ; and that if the warning failed
it would order an election, allowing the people of the State to settle matters
themselves; it was only when these remedies failed that the President •\vould
resort to draft article 2781 The Assembly accepted these provisions. 1

As mentioned earlier, the first three articles 275. 116 and 277 of Part XI
of the Draft Constitution® relating to emergency provisions dealt with a
situation in which the security of India was threatened by war or internal
violence. Draft article 275 was discussed on August 2, 1949, when Ambedkar
moved some amendments. Two changes proposed by him are noteworthy.
In the first place the situation in which a proclamation could be issued was
now described as

a grave emergency whereby the security of India or of any part of the
territory thereof is threatened, whether by war or external aggression or
internal disturbance. . .

The second change proposed was that a Proclamation of Emergency would
cease to have effect at the expiration of two months (instead of six months
as provided in the earlier draft) unless approved by both Houses of
Parliament*.

Several members supported these draft articles, though some considered
the powers to be too sweeping in character. In particular. H. V. Karaath
moved an amendment which required it to be specifically stated that the

’C. Vol. IX, pp. 150-1.

mid..p. 177.

^Select Documents III, 6, pp. 622-5.

‘C. A. Deb,, Vol. IX, pp. 103-4.

816

FRAMING OF INDIA’S CONSTITUTION

President should issue a Proclamation of Emergency only on the advice of
his Council of Ministers. Kamath pointed out that while the Constitution
laid down that the President of the Union would exercise his functions with
the aid and advice of his Council of Ministers, there was no injunction laid
upon him to accept their advice. It was conceivable that the President and
the Council of Ministers might not be seeing eye to eye with each other on
various matters; there might be friction between them, and the President
might act on his own in the event of an emergency. This could pave the way
fof dictatorship*.

^ftefending the emergency provisions which gave special powers to the
Union when war of external aggression or internal disturbance threatened the
security of India. T. T. Krishnamachari said that the Drafting Committee had
bestowed great thought and care to see that the- Government of India had
adequate powers to face an emergency which might well threaten the
Constitution, and might make the country come under a rule which’ was
entirely unconstitutional. Care had been taken that', as soon as it was physically
possible. Parliament should be summoned and its ratification obtained. (The
maximum period during which a proclamation would remain in force without
Parliamentary approval was, under, the amendment suggested by Ambedkar,
two months.) He claimed that, so long as there were safeguards that the
ultimate control of Parliament would remain intact, these provisions fell into
proper perspective and there was nothing seriously objectionable in them.

Dealing with the particular point raised by Kamath requiring the President
to consult the Ministers, T. T. Krishnamachari pointed out that the whole
scheme of the Constitution rested on the basis that the President would be a
constitutional head acting always on the advice of his Ministers. Any
•stipulation in this particular article to the effect that he should consult his
Ministers would imply that he could act on his own in regard to other
pro’vdsions^.

The amended article 275 as moved by Ambedkar was adopted by the
Assembly.

Draft article 276, which gave the Union under a Proclamation of
Emergency complete administrative and legislative authority over the entire
range of subjects covered by all the three legislative lists, was debated by
the A^embly on August 3, 1949 and adopted "with some formal amendments^
' Draft article 277 enabled the President in such an emergency to issue
orders altering the allocation of revenues between the Centre and the States
and was discussed on August 19 and 20, 1949; in order to curtail the
exercise of an absolute and unrestricted power to modify the financial
arrangements between the Centre and ' the States, Ambedkar moved an
amendment to ensure that every order made by the President should be laid

‘C A. Deb., Vol. IX, pp. 105-6.

*Ibid., pp. 122-5.

’/6/d., pp. 129-30.

EMERGENCY PROVISIONS

817

before ^ each House of Parliamenf. .Several members felt that even these
powers might midermiiie provincial autonomy and leave the Provinces at
tlie^ mercy of the Centre. Hriday Nath Kunzru moved an amendnient under
which the Union Government could hold up the distribution of the divisible
portion of income-tax revenue during an emergency but could not interfere
with any other of the sources of revenue. Under the proposed article,,
Kunzru pointed out, these other sources of revenue consisted largely of items
like stamp duties, union excise duties on medicinal and' toilet preparations,
estate duty and succession duty on property other than agricultural land,
terminal taxes on goods and passengers carried by rail and air, and taxes
on railway fare and freights. All these items were recognized as taxation
entries the proceeds of which had to go to the units. The Centre had no
claim or title to any of these sources of revenue, Kunzru argued that while
it would be intelligible and reasonable in an emergency for the Centre to
retain items like the proceeds of income-tax, it would not be so reasonable
for the Union to withhold the other items which had been clearly recognized
as sources of revenue of the units. Under the article as proposed by the
Drafting Committee, Kunzru maintained, it would be open to the President
to tell the units, after the latter had increased their expenditure and had come
to depend on the money received from the Centre for meeting the liabilities
that these financial settlements would be modified. If the States, depending
on such moneys received from the Centre, extended primary education or
increased the number of hospitals, or undertook a programme for improving
the condition of the rural masses, they could not be expected to change their
budgets and withdraw these facilities. This would create serious discontent.
Kunzru described the article as “an expression of nothing but the undiluted
autocracy of the Centre”". Some other members were also critical of the
draft article.

On the other hand, there was support from other members for these
provisions. The argument in favour of the article was summed up by Alladi
Krishnaswami Ayyar who emphasized that the basis of the provision was
lliat the security of India was threatened, and that everybody must be ready
to support the security of the country, to see that the State itself, which was
the basis of individual liberty, did not collapse. The question was whether
in an emergency the President, that is, the Central Cabinet, was to be clothed
with some kind of discretionary power in regard to the adjustment of the
financial relations between the Provinces and the Centre,' subject to the
plenary power of Parliament and to its intervention if anything went wrong.
Alladi Krishnaswami Ayyar regarded a provision of this description as
inevitablel I>efending the article, Ambedkar said that there^^ was no '' reason'
to suppose that the President would wipe out altogether the total proceeds

A. Deb.. VoLIX, p. 504. . .

pp. 505-8.

Hhld.. pp. 509-10.'

818

FRAMING OF INDIA’S CONSTITUTION

which the Provinces were entitled to receive. He would know that to a
considerable extent it would be as necessary to help the Centre as to keep
the States going. Therefore, there was no necessity to tie down the hands of
the Central Government in a particular way*. The proposals of the Drafting
Committee were accepted by the Assembly. -

Another aspect of an emergency situation was also brought to the notice
of the Constituent Assembly : would fundamental rights suffer suspension or
even diminution in an emergency? There was much debate on draft articles
279 and 280 regarding the suspension of fundamental rights during an
emergency. As noticed earlier, the first of these articles virtually suspended
, the provisions of article 13 relating to the fundamental rights of freedom
of speech, freedom of assembly, etc. Article 280 as originally drafted
provided for the suspension of the right to move courts during an emergency
and for six months thereafter for the enforcement of fundamental rights.
Ambedkar moved an amendment which enabled the President to declare by
an order that the right to move any court (including the High Court) for the
enforcement of any fundamental right would remain suspended in an
emergency ; but this would be operative only for the period of the emergency
or earlier and not after the emergency had ceased.

On the first of the articles both Shibban Lai Saxena and H. V. Kamath
pointed out that draft article 13 on fundamental rights had taken care to
provide that the exercise of these rights would be subject to the security
of the State, to public order, and to public interest ; and both of them drew
attention to the limitations imposed by the article. They maintained therefore
that it was not necessary to abrogate them during an emergency. Should
any such abrogation prove in fact to be necessary, they considered that it
should be effected only by Parliament and Saxena accordingly proposed an
amendment. Ambedkar did not agree either that the new article was
unnecessary or that it required amendment. With reference to Saxena's
amendment, he thought that since draft article 13 itself empowered the Centre
as well as the States to legislate in respect of these rights in normal times,
there was no reason why the power should be taken away during an
emergency. The Assembly adopted the article as moved by Ambedkar
without amendment.

Draft article 280 suspending in an emergency the right to move courts
for the enforcement of fundamental rights also came in for criticism.
H. V. Kamath moved amendments which were intended to secure that the
rights sought to be suspended should be mentioned in each order made by
the President, and that such order would be subject to approval by Parliament
by a majority of its total membership^ Shibban Lai Saxena went a step
further and moved an amendment vesting the power in Parliament by law ;

*C. A. Deb., Vol. IX, p. 522.

‘/Wd., pp. 180-3.

Hbid., pp. 186-90.

EMERGENCY PROVISIONS

819

while Kunzm wanted that power to suspend the right to move a court should
be restricted to certain s^pecific rights'; and K. T. Shah wanted that , the
necessary powers should be exercised through an Act of Parliament and not
by executive fiat^ Ambedkar agreed that the Drafting Committee should
reconsider the question whether suspension of proceedings before a court
should be by an order of the Union Government or by law ■ made by
Pariiamenf, and accordingly consideration of the article was postponed till
August 20. 1949.

On that day Ambedkar moved a further amendmenf . The article as
amended still empowered the executive to suspend the right to move the
courts for enforcement of any fundamental right ; it allowed such an order
to extend to the whole of India or any part of its territory ; and a requirement
was laid down that every such order would be laid before each House of
Parliament. Tlie new amendment also provided that the right sought to
be suspended should be mentioned in the order itself.

The amended article evoked a considerable volume of criticism. Various
amendments were moved, all of them intended to curtail the discretion of
the executive to whittle down the right of the citizen to move the courts
for the enforcement of fundamental rights; and to make the control of
Parliament over any such step more effective. Defending the article moved
by Ambedkar, Alladi Krishnaswami Ayyar said that a war could not be
fought on the piinciples of the Magna Carta, and that in a situation
threatened by war, in a country with a large population, and some people
with |>ossibly divided loyalties, freedom of speech might be used for the
purpose of endangering the State and crippling the resources of the country.
He added ;

If only we realize that the country must exist,... if liberty and other
things are to be guaranteed, there can be no possible objection to this
article.

Dealing with the argument that Parliament should have the final voice,
he reminded the Assembly that the Cabinet was responsible to Parliament
in war as well as in peace; but Parliament might govern in times of war
by entrusting the power to the President and the Cabinet in whom Parliament
had confidence^

Ambedkar also strongly defended the article. A large majority of the
Assembly realized the necessity of having power to suspend fundamental
rights in an emergency. As regards the means to be employed. Dr. Ambedkar
explained that the Drafting Committee had adopted the precedent of the
United States of America: it had vested Parliament with the right to deal

A. Dekr Vol IX, pp. 192-3.
pp. 196-S. ■
p. 198, .
p. 523.

Hbid.,^pp. 545-7.", .

820

FRAMING OF INDIA’S CONSTITUTION

Avith the matter and given an ad interim power to the executive. A further
safeguard was that in India the executive would be subject to the authority
of Parliament. Ambedkar maintained that the fears expressed about the
articles were groundless and that there was ample provision for the exercise
of adequate Parliamentary controf. Several of the amendments were
withdrawn and others negatived and the amended article as moved by
Ambedkar was adopted by the Assembly.

Finally, a point was raised in regard to an emergency essentially financial
in nature. Could an emergency be declared by the President if a grave
threat developed to the country’s financial stability or credit?

A last-minute proposal to enable the Union Government to deal with a
financial emergency was introduced by Ambedkar on October 16, 1949’. On
September 5. the Constituent Assembly Secretariat forwarded a draft article
on this subject to the Ministry of Finance for its comments’. This draft
article provided that if the President was satisfied that a situation had arisen
whereby the financial stability or credit of India was threatened, he could by
proclamation make a declaration to that effect. Such a proclamation would,
like a Proclamation of Emergency, have to be placed before each House
of Parliament and would cease to be in force after two months unless approved
by it. During the period of operation of any such proclamation, the executive
authority of the Union would extend to’ the giving of directions to any State
to observe such canons of financial propriety as might be specified in the
direction and to the issue of such other directions as might be necessary.
Any such direction could include a provision requiring all Money Bills to
be reserved for consideration by the President after they were passed by
the Legislature.

The view of the Finance Minister was that, since the advent of an
ecoinomic crisis was not like that of war, it would be difficult to decide
when the President could declare a situation as one which threatened the
financial stability or credit of the country. It would be better if the Centre
were placed in a position to issue directions to the States in financial matters,
at any time when it felt that any action' taken by a State was at variance
with the economic and financial policy of the Centre. If, however, the
Drafting Committee felt that the adoption of this suggestion was not
practicable on the ground that it would evoke strong opposition from the
States, the Finance Minister would welcome and support the inclusion of a
new clause on the lines of the draft as proposed*.

On October 10, 1949, the Finance Ministry forwarded a redraft of the
article to the Constituent Assembly Secretariat. It authorized the President
to issue a Proclamation of Emergency if there was a threat to the financial

■C. A. Deb., Vol. IX, pp. 548-51.

2/Wd.. Vol. X, p. 361.

^Select Documents IV, 12(i), pp. 609-10.

mid., IV, I2(ii), pp. 610-11.

EMERGENCY PROVISIONS

821

stability or credit of India, or the stability of the finances of the Union,
or if the financial and economic policy of the Union was endangered. Such
a proclamation could be in respect of the Union or any State included in
the Union. The remaining clauses were the same as in the draft sent earlier
to the Ministry ; an addition was made to the effect that failure to comply
with any directions issued by the Union would be deemed to be failure to
carry on the government of the State in accordance with the provisions of
the Constitution'. In other words, a position would have been reached where
the Union executive could take over the administration and if necessary
dismiss the Ministry.

The new article moved by Ambedkar in the Constituent Assembly followed
the draft first sent to the Ministry of Finance but with some change in its
wording. The amended article added a clause enabling the Union Government
in a financial emergency to direct a State to reduce the salaries and allowances
of all or any class of its staff ; and another clause empowering the Central
Government to reduce the salaries and allowances of its own staff including
judges of the Supreme Court and High Courts. It also added an express
provision that failure on the part of a State to comply with any directions
would be deemed to be a failure to carry on the government in accordance
with the provisions of the Constitution.

Moving the article in the Constituent Assembly on October 16. 1949,
Ambedkar explained that it was drawn more or less on the lines of the
National Recovery Act of 1930“ or thereabouts passed in the United States
of America which gave power to the President to make similar provisions
in order to remove the economic and financial difficulties that had overtaken
the American people as a result of the great depression. Ambedkar referred
to the economic and financial situation of the country and said that the
Constitution should give sufficient pKJwer to the Central Government to
“grapple with financial and economic stringency”.

Several amendments were moved. Shibban Lai Saxena moved one which
would enable Parliament to encroach upon the State List during such a
situation’. Hriday Nath Kunzru was the principal opponent of the new
article. He did not see anything in the article which enabled the President
to deal with an economic depression in the way President Roosevelt had
tried to do : the whole object of the amendment, according to him, was
to reduce expenditure and prevent the State Governments from giving
up any of their existing sources of revenue. Kunzru claimed that none
of the chief sources of revenue could be misused by the States; and he
could discover no reason for the new article except the anxiety of the
Centre to acquire complete control over the budgets of the States and

^Select Documents IV, 12(iii), p. 611.

^Ambedkar was presumably referring to the National Industrial Recovery Act,
1933, which Was declared unconstitutional in 1935.

’C. A. Deb: Vol. X, p. 362.

822

FRAMING OF INDIA’S CONSTITUTION

ability to dictate to them what financial policies they should adopt’.

K. M. Munshi on behalf of the Drafting Committee supported the article.
He pointed out that in a financial emergency the Central Government v/ould
act through the functionaries of the State. The object of the article was
not to interfere with the officers cf the States but to ensure that the financial
stability of India was maintained at all costs and in all circumstances’.

The amendments were negatived and the article was adopted by the
Assembly.

Some further drafting changes were made at the revision stage and the
articles on emergency provisions were renumbered as articles 352 to 360 of
the Constitution.

An article of important general application was introduced in the
Constitution at the revision stage. There were a number of provisions in
the Draft Constitution which, both in normal times and in periods of
emergency,, enabled the Union Government to issue directions to State
Governments. Thus, in normal times, the executive power of the Union
extended to the giving of such directions to a State as might be necessary
for securing that the executive power of the State was so exercised as not
to impede or prejudice the executive power of the Union, and to ensure
compliance with laws made by Parliament. Again, the Union w'as given
power to give directions to a State as to the construction and maintenance of
means of communication declared in the direction to be of national
importance. In conditions of emergency the Union acquired the power to
issue directions to a State over the whole field of its executive power. The
Draft Constitution was however silent as to the nature and extent of the
power to be conferred on the Union to ensure that these directions were
carried out. Probably in order to rectify this omission, the provisions relating
to financial emergencies contained, as already noticed, a clause that failure
on the part of a State to comply with any directions issued by the Union
under the article would be deemed to be failure on the part of the State
Government to carry on the government of the State in accordance with
the Constitution. This provision was accepted by the Assembly. At the
revision stage the Drafting Committee separated this clause from the financial
provisions and introduced a new article 365 as follows :

Where any State has failed to comply with, or to give effect to, any directions
given in the exercise of the executive power of the Union under any
of the provisions of this Constitution, it shall be lawful for the President
to hold that a situation has arisen in which the government of the State
cannot be carried on in accordance with the provisions of this Constitution.

In other words, such failure on the part of a State would have created
circumstances in which the President could issue a proclamation taking

■C. A. Deb., Vol. X, pp. 368-71.

’‘Ibid., pp. 371-2.

, ,r ' ' ■

EMERGENCY PROVISIONS

823

over the administration of the State, and superseding any authorities of the
State to such extent as might be necessary. There was, some opposition to
this article, especially from Hriday Nath' Kunzru, who maintained that this
new article was not warranted by the terms of reference to the Drafting
Committee and that the committee went beyond its mandate. Ambedkar
argued, however, that the new article contained what he called a consequential
provision because

once there is power given to the Union Government to issue directions
to the States that in certain matters they must act in a certain way. . .
not to give the Centre the power to take action when there is failure .to carry
out those directions is practically negativing the directions...

There was considerable discussion on the article but eventually the
amendment to delete it was negatived by the Assembly^ This article now
figures as article 365 of the Constitution.

mb,, Yol. XI pp. 506 &

AMENDMENT OF THE CONSTITUTION

In the questionnaire issued on March 17, 1947, the Constitutional Adviser
inter alia invited suggestions on the provisions to be made for amendments
to the Constitution. The primary question was of course whether an element
of rigidity should be introduced and if so. to what extent. B. N. Rau
appended a note in which he explained the procedure for constitutional
amendment in Canada, Australia, South Africa, the Irish Free State, the
United States of America and Switzerland*. He also pointed out that the
British Constitution could be altered by ordinary law.

Only about half a dozen replies were received from the members, but all
of them suggested special procedures for constitutional amendment.
B. G. Kher and Rohini Kumar Choudhury proposed the condition of a
two-thirds majority in each House of the Union Parliament; K. M. Panikkar
was also in favour of this suggestion; but in addition he wanted ratification
by the Legislatures of the units. Syama Prasad Mookerjee suggested a two-
thirds majority in each of the two Houses of the Union Legislature, and
thereafter either a two-thirds majority in a special constitutional convention
or ratiJication by two-thirds of the Legislatures of the units (the popularly
elected Lower Houses in the case of those units which had two chambers).
The constitutional convention was to be composed of members either directly
elected by the electorate or by the Legislatures of the units (the Lower
Houses in the case of units with bicameral Legislatures) : Rajkumari Amnt
Kaur v/anted a referendum and approval by a two-thirds majority of the
voters. P. Subbarayan suggested that the Constitution could be altered by
an Act of the Union Legislature on the recommendation of a Provincial
Legislature, but where minority interests were affected he wanted that the
consent of two-thirds of the members of the minority concerned should be
necessary”.

K. T. Shah in his memorandum proposed a complicated procedure. Ail
proposals for amendment of the Constitution (other than its provisions
relating to the redistribution of the boundaries of the units, fundamental
rights and the rights of minorities) had to originate in the Union Legislature
and be adopted in the first instance by a majority of at least three-fifths of
the total membership of each House, followed by the assent of the Head
of the State. They had then to be ratified by at least two-thirds of all the

'Select Documents II, 13, pp. 448-51.

^Replies to the questionnaire, May-June. 1947. Select Documents II. ]5(iii) and
21(1), pp. 532-3, 630-1.

AMENDMENT OF THE CONSTITUTION

825

I.egislatures of the component units ; the amending measure had also to
receive the support of two-thirds of the total membership of the L.egislatures.
Proposals for the redistribution of boundaries of units had to< originate in
the Legislatures of the units concerned ; on their adoption by two-thirds
majorities, they were to be placed before the Union Legislature for ratification.
In the case of amendments affecting fundamental rights and the rights of
minorities, Shah favoured a referendum on the initiative of the Head of the
State, and approval by a two-thirds majority of the total adult citizens or
of the members of the minorities concerned'.

In their joint memorandum on the principles of the Union Constitution,
Gopalaswami Ayyangar and Alladi Krishnaswami Ayyar favoured all
proposals for constitutional amendment being first approved by a two-thirds
majority in each House of the Union Legislature ; but no such proposal would
have effect unless it was also approved by the Legislatures of not less than
two-thirds of the unitsl

In his memorandum on the Union Constitution of May 30, 1947, the
Constitutional Adviser included the provision that an amendment of the
Constitution could be initiated in either House of the Union Parliament :
when the proposed amendment was passed in each House by a majority of
not less than two-thirds of the total membership of that House and was
ratified by the Legislatures of not less than two-thirds of the units of the
Union (other than the Chief Commissioners’ Provinces), it would be presented
to the President for his assent ; and on such assent being given the amendment
would come into operation*.

Not all amendments were, however, to undergo this elaborate process. The
memorandum contained several provisions for amendments to be effected by
the normal legislative process. For instance, all supplementary legislation
regarding citizenship could be made by ordinary Union law: also. Union
law could include new territories within the Union, as well as make
readjustments of territory as between the Provinces.

The memorandum also contained a transitional provision to enable the
Union Parliament to direct that, for a period to be specified in the Act, the
Constitution would have effect subject to such adaptations and modifications
as might be necessary to provide for difficulties that might arise in the
transition from the provisions of the Government of India Act, 1935, to
those of the Constitution. No such Act could, however, be passed after
three years after the commencement of the Constitution. It was explained
that such a clause for the removal of difficulties was quite usual. The three-
year period had been borrowed from article 51 of the Constitution of Ireland*.

‘“General Directives” by K. T. Shah, December 22, 1946, Select Documents II,
15(i), pp. 469-70.

II, 15(vi), p. 550.
mid., II, I5(ii), p. 492.

pp... ,493-4 • ■

826 FRAMING OF INDIA’S CONSTITUTION

These matters were considered at a joint meeting of the Union Constitution
Committee and the Union Powers Committee held on June 30, 1947. At
this meeting the proposal contained in the memorandum of the Constitutional
Adviser was accepted with one change, namely, that the majority required
in Parliament for a constitutional amendment would be two-thirds of the
members present and voting: and ratification by not less than one half of
the constituent unit Legislatures was also laid down. With this change the
proposal was included in the Report of the Union Constitution Committee
presented to the Assembly on July 4*.

The decisions taken at the joint meeting of the two committees on June
30 were however provisional, for this meeting appointed a sub-committee
consisting of N. Gopalaswami Ayyangar, B. H. Zaidi, B. R. Ambedkar,
K. M. Munshi and K. M. Panikkar to examine further the question of
ratification of amendments by unit Legislatures. This sub-committee
recommended on July 11 that the ratification of amendments to the Con-
stitution should be by a majority of the Legislatures of each class of units,
that is, the Provinces and the federated States (where federated States were
grouped together to form a unit, each group would be regarded as one State)".

The Union Constitution Committee met again on July 12. At this meeting
the committee made a significant change in its previous recommendation. It
was suggested that for the purpose of amendment the provisions of the
Constitution should be classed in two categories. Where an amendment
proposed a change in the Federal Legislative List, or in the representation
of units in Parliament, or in the powers of the Supreme Court, it would
require, first, a majority in each House of the Federal Parliament of the total
membership of the House and of two-thirds of the members present and
voting; and second, ratification by the Legislatures of the units representing
a majority of the population of all the imits, including at least one-third of
the population of the federated States.

In regard to other amendments, the second requirement of ratification by
units would not be necessary.

These proposals were included in a supplementary report of the Committee
presented on July 13, 1947’.

When these provisions came up for consideration before the Constituent
Assembly on July 31, Gopalaswami Ayyangar requested the Assembly
to agree to their postponement. An important issue had been raised as to
the provision to be made for giving to the Provincial Legislatures some
constituent power for amending the Constitution of the Province’.

‘Minutes of the joint meeting. Also see Report of the Union Constitution
Committee, Se/ect Documents II, 32 and 18(i), pp. 762, 586.

“Minutes, July 11, 1947. Select Documents II, 17(ii), p. 573.

’Minutes, July 12, 1947 and Supplementarj' Report, July 13, 1947. Select
Documents II, 16 and I8(ii), pp. 563-4, 592.

‘C. De*., Vol. IV, p. 1039.

AMENDMENT OF THE CONSTITUTION

827

The Constitutional Adviser incorporated in the Draft Constitution prepared
by him in October 1947 the recommendations contained in the ' Supplementary
Report of the Union Constitution Committee. Following the recommendation
of the Advisory Committee on Minorities* Fundamental Rights, etc., he also
included a proviso that the provisions in the Constitution relating to the
reservation of seats for the Muslims, the Scheduled Castes, the Scheduled
Tribes, the Indian Christians and the Sikhs, either in the Federal Parliament
or in any Provincial Legislature, should not be amended before the expiry
of ten years from the commencement of the Constitution\ As a temporary
expedient he added a clause which gave the President power to adapt and
alter the Constitution for the purpose of removing any difficulties which
might arise in the course of transition from the provisions of the Government ^
of India Act, 1935, to the new Constitution ; but this power would be available
only till the first Federal Parliament had been convened^

The Constitutional Adviser included another clause providing for an easy
method of amendment in the initial stages of the Constitution. It conferred
on the Federal Parliament full powers for a period of three years to amend
the Constitution, whether by way of variation, addition or repeaP.

He had an opportunity to discuss this provision during his visit to the
U.S.A., Canada, Ireland and the United Kingdom; it was regarded there as
a ‘"wise precaution”^ In fact De Valera was of the view that even a
three-year period was probably far too short and that this power of
amendment should be available to the Federal Parliament for a period of
not less than five years^

The Drafting Committee considered these provisions in February 1948®. It
made three material changes in the provisions made by the Constitutional
Adviser. In the first place, the committee framed a self-contained and
independent article regarding the reservation of seats in the Legislatures for
minority communities. Tliese provisions could not be amended for a period
of ten years and would then^ cease to have effect unless continued in operation
by an amendment of the Constitution".

The second change made by the Drafting Committee gave a limited power
of initiating constitutional amendments to the State Legislatures. This power
related to two matters— the method of choosing Governors and the
establishment or abolition of Legislative Councils in the States. One of the
alternative methods of choosing Governors suggested by the Drafting

'^Select Documents III, lOh clause 232, pp. 98-9.

"Ihid., clause 237-A, p. 101.

‘Ibid., clause 238.

‘B. N. Rau, Letters reporting result of discussions in Washington, Ottawa, and
New York. November, 1947 (Not published).

^Report of the Constitutional Adviser on his visit to U.S.A., Canada, Ireland
md England. Select Documents jn, 2, p. 224-.

“Minutes, February 6, 9 and 10, 1948, Select Documents III, 5, pp. 481, 489, 491.

‘Select Documents III, 6, article 305, pp. 637-9.

828

FRAMING OF INDIA’S CONSTITUTION

Committee at this stage was that they would be appointed by the President
from a panel of four persons elected by the members of the Legislative
Assemblies of the States or. where there were Legislative Councils, by the
members of the Legislative Assemblies and Councils assembled at joint
meetings, in accordance v/ith the system of proportional representation by
means of the single transferable vote. The Drafting Committee introduced
a clause which provided that an amendment of the Constitution seeking
to make any change in its provisions relating to the method of choosing a
Governor (if this alternative was adopted), or to the number of Houses of
the Legislature, would have to adopt a special procedure. Such a Bill could
be initiated in the Legislative Assembly of a State or, where a State had a
Legislative Council, in either House of the Legislature. If the Bill was
passed by the Legislative Assembly by a majority of its total membership —
in the case of a State with a bicameral Legislature by a majority of the total
membership of each House — ^it would be submitted to Parliament for.
ratification : and when ratified by a majority of the total membership of each
House of Parliament, it would be submitted to the President for his assent.
On such assent being given, the Constitution would stand amended in
accordance with the terms of the Bill. At that stage, such procedure was
applicable only to the units corresponding to the Governors’ Provinces: the
Indian States were still to frame their own constitutions’.

The third amendment made by the Drafting Committee was that it was
made a requirement that changes in any of the legislative lists (not merely
the Federal List) should receive ratification of at least one-half of the
Provincial Legislatures and one-third of the Legislatures of Indian
States.

The provision suggested by B. N. Rau conferring on the Union Parliament,
temporarily for a period of three years, power to amend the Constitution
was not accepted by the Drafting Committee. The committee had second
thoughts on this matter, and an amendment was suggested enabling
Parliament to amend any of the articles of the Constitution for a period of
five years. Commenting on this amendment, B. N. Rau observed :

The process of amending the Constitution during the first few' years should
be made easier than is provided for in this article. In the first place,
to mention only one example, the pattern of the Indian States is under-
going rapid change and one cannot say with confidence that the
Constitution will not have to be continually altered at least during the
initial years, to fit the constantly changing pattern. Other problems
too may arise requiring frequent amendment of the Constitution. The
Constitution should not, therefore, be too rigid during the first few years.
Secondly, we have to remember that the present Constituent Assembly
is not based on adult suffrage, the members having been elected by the

'Select Documents III, 6, article 304(2), pp. 637-9.

AMENDMENT OF THE CONSTITUTION

829

various Legislatures which, in their turn, were elected on a very restricted
franchise. The Pariiament of the new Union of India, on the other hand,
will be based on adult ' franchise. If a Constituent Assembly based on
a restricted franchise can by a simple majority frame the original
Constitution, it is illogical to lay down that the Constitution so framed
shall not be amended by a Parliament based on adult franchise except
by a specially difficult process involving special majorities and in some
cases special ratificationsh

Subsequently however the Drafting Committee decided not to sponsor the
amendment. While introducing the Draft Constitution on November 4, 1948,
Ambedkar made a reference to ihe procedure for amendment. He said :
The provisions of the Constitution relating to the amendment of the
Constitution divide the articles of the Constitution into two groups. In
one group are placed articles relating to (a) the distribution of

legislative powers between the Centre and the States, (b) the representation
of the States in Parliament, and (c) the powers of the courts.

All other articles are placed in another group. Articles placed in the
second group cover a very large part of the Constitution and can be

amended by Parliament by a double majority, namely a majority of not
less than two-thirds of the members of each House present and voting
and by a majority of the total membership of each House. The amendment
of these articles does not require ratification by the States. It is only
in those articles which are placed in the first group that an additional
safeguard of ratification by the States is introduced. One can therefore
safely say that the Indian Federation will not suffer from the faults of
rigidity or legalism. Its distinguishing feature is that it is a flexible

federation^

By the time the provisions regarding amendment of the Constitution came
up for consideration by the Assembly on September 17, 1949, a number of
developments had taken place necessitating amendments to the Draft
Constitution of February, 1948. The decision had been approved that
Governors would be appointed by the President by warrant ; and the question
of amending this provision no longer arose. The provision regarding abolition
or creation of second chambers in States had been included in the chapter
on State Legislatures. These decisions made clause (2) of draft article 304
superfluous. An article had been included among the special provisions
relating to minorities providing for the termination of the system of reservation
of seats in the Legislatures after ten years, and this made article 305
unnecessary. Lastly, the process of integration of States had progressed to
such an extent that the States in Part III of the First Schedule could be
treated in practically all respects in the same manner as the Provinces ; and

^Select Documerns^ IV, l(i), pp. 374-5.

: *C. A VoL VII, p. 36.

830

FRAMING OF INDIA'S CONSTITUTION

therefore the procedure for ratification could be simplified. Accordingly,
Ambedkar moved an amendment introducing a substitute article which read
as follows :

An amendment of the Constitution may be initiated by the introduction
of a Bill for the purpose in either House of Parliament, and when the
Bill is passed in each House by a majority of the total membership of
that House and by a majority of not less than two-thirds of the members
of that House present and voting, it shall be presented to the President
for his assent and upon such assent being given to the Bill the Constitution
shall stand amended in accordance with the terms of the Bill :

Provided that if such amendment seeks to make any change in —

(a) article 43, article 44, article 60, article 142 or article 2 13- A of this

Constitution, or

(b) Chapter IV of Part V, Chapter VII of Part VI, or Chapter I of

Part IX of this Constitution, or

(d) the representation of States in Parliament, or

(e) the provisions of this article,

the amendment shall also require to be ratified by the Legislatures of not
less than one-half of the States for the time being specified in Parts I
and in of the First Schedule by resolutions to that effect passed by those
Legislatures before the Bill making provision for such amendment is
presented to the President for assent".

The Constituent Assembly took up the amendment for consideration on
September 17, 1949. During the discussion P. S. Deshmukh, Brajeshwar
Prasad, H. V. Kamath, Jugal Kishore and Mahavir Tyagi criticized the
provision for amendment as being too rigid.

Deshmukh thought that many provisions in the Constitution were likely to
create difliculties when it actually started functioning. He therefore wanted
that the provision for a two-thirds majority should be omitted and suggested
that it would be sufficient if such measures had a clear majority of the total
membership of each House of Parliament. Further, if the President certified
that an amendment was not one of substance, it should be possible to pass
it by a simple majority. In order to protect fundamental rights, however,
he suggested that it should be ultra vires of Parliament to make laws seeking
any amendment of the Constitution which would infringe, restrict or diminisii
rights of individuals ‘‘with respect to property or otherwise’'^

Brajeshwar. Prasad argued that Legislatures of States should not be
associated with the process of amendment. The purpose of amending the
Constitution . would in his view be to take more powers from the State
Governments and confer them on the Centre; and the State Legislature would

A. Deh, VoL IX, p. 1643.
^lbid,,.p. 1644-6.

AMENDMENT OF THE CONSTITUTION

831

oot be agreeable to- such a proposition.' He was however in favour of a
referendum. He observed:

Referendum is democratic as it is only an appeal to the people, and no
democratic government can have any objection to resorting to
referendum in order to resolve a deadlock, when there is a conflict between
Parliament and Provincial Governments. Secondly, I am in favour of
referendum because it cures patent defects in party Governments,

He therefore moved an amendment seeking to substitute the word
‘‘electorate” for the words “Legislatures of not less than one half of the
States for the time being specified in Parts I and HI of the First Schedule
by resolutions to that effect passed by those Legislatures before the Bill
making provision for such amendment is presented to the President for
assent”'.

The chequered history of the article during the previous two years or more
had only proved to H. V. Kamath the necessity for an easy procedure for
constitutional amendment. The original article in the Draft Constitution
had laid it down that ratification by State Legislatures would be required
when an amendment sought to make changes only in three matters — the
lists in the Seventh Schedule, the representation of States in Parliament and
the powers of the Supreme Comt. But since then there had been considerable
accretion to this category. Moreover rigidity would block progressive changes;
and if the Constitution held up the future progress of the country, the
progress so retarded would probably be achieved by violent revolu^ion^
Mahavir Tyagi held that a constitution which was unalterable was
practically a violence committed on the coming generation : but the Draft
Constitution was sufficiently flexible. While he supported the absolute
majority proviso, he objected to the proviso of two-thirds of the members
present and voting. Unless it was removed the Constitution would be
rendered unnecessarily rigid. Naziruddin Ahmad supported the rigidity given
to the Constitution by article 304, as he felt that it was only proper to make
a written Constitution not too flexible®.

Replying to the debate Ambedkar pointed out that the issue before the
Assembly was whether “our Constitution should be made open for amendment
by a future Parliament either by a simple majority or by a method which
is much more facile than embodied in article 304”. Much of the opposition
to the draft amendment was based on a mistaken impression that . the
Constifution was rigid. To allay such fears the articles of thb Constitution
could broadly be classified into three categories.

The first category was not included in the part relating to amendment of
the Constitution but in the other parts. By way of example Ambedkar
mentioned that the creation of new States or the reconstitution of existing

*C. Del?., ' Vol IX, pp. 1646-9,

:■ 1649 - 53 . ^

pp, 1653 - 7 . '

832

FRAMING OF INDIA’S CONSTITOTION

States could be effected by Parliament by a simple majority. Similarly
Parliament was given power to abolish upper chambers^ in States or create
new second chambers. He also mentioned other instances where Parliament
could by a simple majority effect amendments of the Constitution. In a limited
category of matters— for example the election of the President, the extent
of executive authority of the Union, the powers of the Supreme Court and
the High Courts and other fundamental provisions affecting the position of
States— it was required that amendments would have to be ratified by
Legislatures of not less than one half of the States other than the centrally
administered States. For the rest a two-thirds majority in Parliament was
sufficient. ,

Ambedkar maintained that the principles adopted by the Drafting
Committee were unquestionable :

The Constitution is a fundamental document. It is a document which
defines the position and power of the three organs of the State — the
executive, the judiciary and the legislature. It also defines the powers of
the executive and the powers of the legislature as against the citizens,
as we have done in our chapter dealing with Fundamental Rights. In fact,
the purpose of a constitution is not merely to create the organs of the
State but to limit their authority, because, if no limitation was imposed
upon the authority of the organs, there will be complete tyranny and
complete oppression. The legislature may be free to frame any law ;
the executive may be free to take any decision ; and the Supreme Court
may be free to give any interpretation of the law. It would result In
utter chaosh

The article as amended by Ambedkar was accepted by the Assembly and
all the other amendments were rejected. In the process of revision the
article was renumbered as article 368 in Part XX of the Constitutionx

NOTE

The three methods of amending the provisions of the Constitution and the
provisions Which can be amended by each method are briefly summarized below ;
Category L Amendments which can be made by ordinary legislation by ' Fmlmment i

(1) Article 2: Admission into the Union, or the establishment of new States;

(2) Article S: (a) Formation of new States by separation of territory from, any
State or by uniting two or more States or parts, of States or by uniting any territory
to a part of any State; (b) increasing the area of any State; (c) diminishing the area
of any State; (d) altering the boundaries of any State; (e) altering the name of any
State.

'(3) Article 4:' Amendment of the First Schedule (name and ■ territories,, of States

A, Deb., VoL IX, p. 1659-63.

^Select Documents IV i 18, pp. 888-9.

AMENDMENT OF THE CONSTITUTION

833 '

and name and extent of Union territories) and Fourth Scheduie (scale of representation
in the Council of States) consequent on a law being made on any of' the matters
mentioned in (1) and (2) above and the making of incidental, supplemental and
consequential provisions, including provision as to' representation in ■■ Parliament and
States Legislatures affected by such law.

(4) Ankle 169: Abolition of ' the Legislative Council of a State having such a
Council, and creation of such a Council in a State having no such Goimcil, if the
Legislative Assembly of the State passes a resolution to that effect by a majority of
the total membership of the Assembly and by a majority of not less than two-thirds
of the members present and voting.

Incidental and' consequential provisions to give effect to a law as' mentioned above.

(5) Article 17! (2) : To provide for the . composition of Legislative Councils.

(6) Fifth Schedule :■ Addition to, and variation or repeal of, any of the provisions
of the Schedule relating to the administration and control of Scheduled Areas and
vScheduled Tribes.,

"(7) Sixth Schedule : Addition to -and variation or repeal of any of the provisions
of the Schedule relating to the administration of tribal areas in Assam.'

Category 11 . Amendments which require a majority of the total membership of each

House of Parliament and also a majority of two-thirds of the membership of each

House present and voting: and in addition ratification by the Legislatures of not
less than one-half of the States by resolutions to that effect before a Bill' making

provision for such amendment is presented to the President far assent :

Amendments seeking to make changes in

■(a) articies 54 (election of the President), 55 (manner of election of the. President),
162 (extent of executive power of States), and 241 (High Courts for Union
Territories); ,

(b) Chapter 'IV of Part V (the Supreme Court), Chapter V of Part VI (High
Courts in the States) ■ and Chapter I of Part XI (Legislative Relations);

(d) the representation of States in Parliament; and ,

(e) the provisions of article 368 itself relating to procedure for amendment '
Category III. Amendments which can be made by Parliament by a special rnajority

of ike iota! membership of each House voting :

All other ■ provisions of the Constitution. These can be amended by legislation by^
Parliament passed by a majority of the total membership of each House of Parliament
and of not less than two-thirds of the members of each House present and voting.

There are in addition a tmmher of provisions- in the Constitution which empower
Parliament and the State Legislatures to pass Acts which have the effect of aEuending'
certain provisions, mostly of a temporary nature, included in the Constitution. These
are;

(r) Article 7 5{6) : Power to legislate regarding salaries and allowances of
Ministers, and supersede the temporary provision made in the Second Schedule;

(b) Article 97 : Power to legislate regarding the salaries and aliowances of the
Chairman and Deputy Chairman of the Council of States and the Speaker
and Deputy Speaker of the House of the People and supersede the temporary

provision made in The Second Schedule;-

(c) Articles 100(3) and 189(3): Power to legislate regarding the quorum for
meetings of a House of Parliament or' of a State Legislature;

(d) Articles 105(3) and 194(3): Power to lay down the privileges of Parliament
and the State Legislatures;' ■

FRAMING OF INDIA’S CONSTITUTION

(&) Articies 106 and iP5: Power to determine the salaries and allowances of
members of Parliament and of the State Legislatures;

(f) 4 rticies II8{2} and 208(2): Power conferred on each House of Parliament

_ and a State Legislature to make Rules of Procedure and Standing Orders;

(g) Articles 120(2) and 210(2): Power to retain English as a ianguage in which
the business of Parliament or a State Legislature may be transacted at the
expiration of fifteen years from the commencement of the Constitution;

(h) Article 124(1): Providing that there shall not be more than seven puisne
judges in the Supreme Court until Parliament otherwise provides;

(i) Article 125(2) : Power to legislate regarding allowances and privileges of
Supreme , Court judges and their rights in respect of leave and pensionSs and
supersede the temporary provision made in the Second Schedule;

(j) Article 133(3): Providing that no appeal shall lie to the Supreme Court fro!ii
the judgment or decree or final order of a single judge of a High Court
unless Parliament otherwise provides;

(k) Article 153 : Providing that the jurisdiction and powers of the Federal Court
under existing law shall be exercisable by the Supreme Court until Parliament
by law otherwise provides;

(l) Article 148(3): Power to legislate regarding the salaries and other conditions
of service of tlie Comptroller and Auditor-General and supersede the temporar\‘
provision made in the Second Schedule;

(m) Article 164(5) : Power to legislate regarding the salaries and allowances of
Ministers and supersede the temporary provision made in the Second Schedule;

(n) Article 221(2): Power to legislate regarding privileges, allowances and rights
of High Court Judges in respect of leave and pensions, and supeisede the
temporary provision made in the Second vScheduIe;

(o) Article 343(3) : Empowering Parliament to provide that after fifteen years
after the commencement of the Constitution, English and the Devanagari form
of numerals may be authorized for use for such purposes as may be specified
in a law enacted by Parliament;

(p\ Article 348(1) : Providing that the proceedings of the Supreme Court and the
High Courts, authoritative texts of all Bills and Acts and all orders, rules,
regulations and bye-laws issued under the Constitution or under law made by
Parliament or the Legislature of a State shall be in the English lEnguage
until Parliament by law otherwise provides.

SUMMING UP

In the preceding chapters of this study an attempt has been made to
gather all the available material relating to the discussions on the important
provisions of the Constitution of India, and to trace as far as possible
the course of these provisions through the various stages of discussion in
the Constituent Assembly and its committees. In concluding this study,
it is appropriate to mention some general features of the Constitution as
they have emerged out of the discussions in the Assembly.

A preliminary point needs to be made at the outset ; on a number of
controversial issues efforts were made to eliminate or at least to minimize
differences tlirough informal meetings of the Congress party’s representatives
in the Constituent Assembly. Of such meetings no authentic reports were
kept and only some speculative statements appeared in newspaper reports.

The introduction of adult suffrage in the Constitution was an act of
great faith on the part of the Constituent Assembly. In numbers, it meant
a five-fold expansion of the electoral rolls, in comparison with those for
the 1935 Constitution : 176 million voters in the first general elections held
early in 1952, as against 35 million in the elections in 1946 to the Provincial
Legislative Assemblies that elected the members of the Constituent
Assembly.

Such faith in the democratic process had its justification in the principle
that the will of the people was paramount. From the beginning of the
freedom struggle the basic purpose had been a government of the people
by the people for the people. The instrument in the Constitution to ensure
its fulfilment was adult franchise for the elections to the Legislatures, with
an executive responsible to the Legislatures so elected. During British
rule the demand for adult franchise had been rejected because, among various
other reasons, it was considered to be administratively impossible for the
machinciy of government in India to handle elections based on adult
franchise. The magnitude of the task was vividly described by Ambedkar
in his speech opposing adult franchise as the basis for the electidn of the
President*. From the start of the Constituent Assembly’s proceedings,
however, opinion in tlie country was almost overwhelming that elections
to the House of the People and to the Legislative Assemblies of the States
should be on no other basisv

A note of caution was nevertheless apparent in the utterances of some

Chapter on the President and the Union Executive,

836

FRAMING OF INDIA’S CONSTITUTION

members who were sceptical about the success of adult franchise. As a
notable instance may be mentioned Kunzru, a veteran parliamentarian, who
warned the Assembly that an advance in one bound from a greatly restricted
to universal franchise was not the path of wisdom. He preferred its gradual
widening so as to bring about adult suffrage within a definite period of
about fifteen years; and as an immediate step he urged the grant of the
vote to between forty and fifty per cent of the adult population. Under such
circumstances he thought that there would be less room for demagogy, and
political parties and individual candidates could usefully undertake the task
of educating the electorate. But under adult suffrage he feared that such
education would prove a needlessly difficult task’.

Kunzru’s voice proved to be that of a small minority, the general sentiment
in the Constituent Assembly being in favour of adult suffrage based on
faith in the common man and in the efficacy of democratic processes. An
eloquent exponent of this view was Alladi Krishnaswami Ayyar who claimed
that the introduction of adult suffrage was made in “the full belief that it
could bring enlightenment and promote the well-being, the standards of life,
comfort and decent living of the common man”. Arguing on the same
lines, he added;

If democracy is to be broadbased and the system of government that is
to function is to have the ultimate sanction of the people as a whole, in
a country where the large mass of the people are illiterate and the people
owning property are so few, the introduction of any property or
educational qualifications for the exercise of the franchise w'ould be a
negation of the principles of democracy. . . It cannot after all be

assumed that a person with a poor elementary education and with a

knowledge of the three R’s is in a better position to exercise the franchise
than a labourer, a cultivator or a tenant who may be expected to know
what his interests are and to choose his representatives. Possibly a large-
scale universal suffrage may also have the effect of rooting out corruption
that may turn out to be incidental to democratic election^.

The acceptance of the verdict of the common man as the basis of the
constitutional structure raised a vital point touching the very status of the

Assembly. What right had the Assembly, elected on the basis of the

restricted franchise of the Act of 1935, to frame a Constitution by a majority
vote — a Constitution which could be amended by Parliament only by a
two-thirds majority, even though that Parliament might be elected on the
basis of adult franchise? To this Ambedkar offered the answer :

The Constituent Assembly in making a Constitution has no partisan motive.
Beyond securing a good and workable Constitution it has no axe to grind,
In considering the articles of the Constitution it has no eye on getting

'C. A. Deb., Vol. XI, pp. 785-6.

^Ibid., p. 835.

SUMMING UP 837

through a particular measure. The future Parliament if it met as a
Constituent Assembly, its members will be acting as partisans seeking to
carry amendments to the Constitution to facilitate the passing of party
measures which they have failed to get through Parliament by reason of
some article of the Constitution which has acted as an obstacle in their
way. Parliament will have an axe to grind while the Constituent
Assembly has none‘.

The objective which the Assembly and the Drafting Committee set before
themselves in framing the Constitution was clearly explained by the various
spokesmen on behalf of the committee. Having set out in the Objectives
Resolution, adopted in January 1947, certain fundamental social and ^
political ends to be achieved by independent India, the Constitution was
devised as the agency by which these objectives could be translated into
practice in a democratic manner, through a machinery which would enjoy
the support of the people.

Suggestions were made at several stages for the incorporation of particular
doctrines or cliches in the Constitution. One such proposal was to declare
India to be a socialist republic, committed to a State policy of nationalization
of agriculture and industry. Ambedkar, in speaking on the Objectives
Resolution, expressed his view that the resolution was somewhat
disappointing in its failure expressly to mention that the State would
practise a socialist economy, with nationalization of industry and of land
in operation”.

Again, suggestions were made from time to time that India’s Constitution
should be based on village republics. To these and other suggestions of
a similar kind, a vigorous reply was given by Alladi Krishnaswami Ayyar,
who pointed out that the Constitution was not committed to any particular
economic reorganization of society, and the people of India were free to
modify the economic conditions designed for their betterment in such
manner as they might choose. K. Santhanam further elaborated this view:
the Constitution would enable the people of India to make their will felt
in the spheres of social, political and economic organization. With regard
to the demand for a socialist State there was nothing in the Constitution
to prevent the people of India from enforcing a fully socialist republic ;
but the Constitution was an inappropriate place for the incorporation of
party slogans. It was intended, on the other hand, to provide the machinery
for government, to fimction and be sustained on the basis of the will of
the people.

The non-partisan character of the discussions of the Draft Constitution
was, perhaps, the most noteworthy feature of all the debates on the
CcMistitution. In the various Provincial Legislative Assemblies elected

‘C. d. UeL. Vol. VII, pp. 43-4.

Vol. I, p. 98.

838

FRAMING OF INDIA’S CONSTITUTION

early in 1946, as a preliminary to the election of members to the Constituent
Assembly, the Congress party had secured a great majority of the seats.
In the atmosphere prevalent at the end of the second world war, the Congress
party mi g ht indeed have secured nearly all the seats. Gandhi’s towering
personality and the detention in prison for three years of thousands of
Congress members in the latter half of the second world war were
considerations which might have proved irresistible with the electorate.
With admirable foresight and wisdom the Congress leaders recognized,
immediately after their decision to participate in the labours of the
Constituent Assembly, the need to bring together a body of experts regardless
of party afihliations in formulating the principles and working out details.
Gandhi gave the lead in commending to the Congress executive sixteen
men of eminence to be elected on the Congress ticket so that they
could participate in the work of Constitution-making. The presence of these
men — ^like AUadi Krishnaswami Ayyar, N. Gopalaswami Ayyangar, H. C.
Mookherjee, S. Radhakrishnan, H. N. Kunzru, Syama Prasad Mookerjee and
others — undoubtedly enhanced the authority of the Constituent Assembly
and facilitated the general acceptability of the Constitution. To this band
were added B. R. Ambedkar, who as the Chairman of the Drafting
Committee, became the principal pilot of the Draft Constitution through the
Assembly and the representatives of several minorities.

Another factor deserves mention. The stability ensured by the numerical
strength of the Congress party gave purpose and direction to the efforts of
the Assembly. Discussions in the party were completely free and every one,
including those elected on the Congress ticket, participated in them.
Discussions in the Assembly were also uninhibited ; the attitude of Rajendra
Prasad, adopted also by others who sometimes presided over the Assembly
in his absence, was to give full opportunity to all members to participate
in the discussions. The support of the Congress party guaranteed that decisions,
once taken, went through all the stages of discussion. As Ambedkar said.
The task of the Drafting Committee would have been a very difficult
one if this Constituent Assembly had been merely a motley crowd, a
tessellated pavement without cement, a black .stone here and a white
stone there in which each member or each group was a law unto itself.
There would have been nothing but chaos. This possibility of chaos was
reduced to nil by the existence of the Congress party inside the Assembly
which brought into its proceedings a sense of order and discipline. It is
because of the discipline of the Congress party that the Drafting Committee
was able to pilot the Constitution in the Assembly with the sure knowledge
as to the fate of each article and each amendment’.

K. Saathanam also bore testimony to the influence wielded by discussions
at the party meetings. He pointed out that it was not only on the floor

’C. A. Deb., Vo!. XI, p. 974.

SUMMING UP

839

of the Assembly that the Constitution had been scrutinized, but much
more strictly at the Congress party meetings. A group of people in the
party had taken the greatest pains to scrutinize every clause and every article
and a great deal of improvement was made in those meetings'. But of these
discussions, because they were within the party, no records were kept.

The Congress party never yielded to the temptation of attempting to carry
any of the provisions or of imposing any of its ideas through the weight
of its party majority. In the Assembly and its committees all the efforts
of the leaders were directed towards ensuring that in matters of major
principle substantial agreement was reached.

The question of political rights for minorities is a good example of this
policy. When the proposal was first put forward that reservations of seats
in the Legislatures for religious groups and communities should not find
a place in the Constitution, the Chairman of the Advisory Committee,
Vallabbbhai Patel, insisted tliat such an important question should not be
decided on the basis of a snap vote : it was for the communities concerned —
principally the Muslims and the Sikhs — ^to deliberate on the proposal and
reach a decision after mature consideration. In May 1949, the Advisory
Committee, considering the whole situation, recorded the conclusion that
the time had come when the vast majority of the minority communities
themselves realized after great reflection the evil effects in the past of such
reservation on the minorities themselves, and that the reservations should
be dropped^

It was on the basis of this agreement that the final recommendation of
the committee was placed before the Assembly on May 25, 1949, creating
a truly secular polity in which special protection and safeguards were reserved
only for the backward sections of the people.

On all controversial issues, opportunity was given to all the members for
a full expression of their views. On behalf of the Drafting Committee,
Ambedkar. Alladi Krishnaswami Ayyar, Munshi and T. T. Krishnamachari
explained with considerable patience the meaning and implications of the
various provisions of the Constitution. Speaking on the Objectives Resolution
in January 1947, Jawaharlal Nehru claimed that they had always balanced
two factors, “the urgent necessity in reaching our goal and the other, that
w'e should reach it in proper time and with as great unanimity as possible’”.
This desire for general agreement was in evidence through all the stages of
the deliberations of the Constituent Assembly. On a number of occasions
debates on individual articles were postponed in order to enable such general
agreement to be reached: and it would not be an exaggeration to claim
that the Constitution as finally passed commanded a vdde measure of support,
both in the Assembly and the country.

'C. A. Deb., Vol. ys., p. no.

Hbid.. VqI. VIII, p. 270.

V&ii., Vol. II, p. 299.

840

FRAMING OF INDIA’S CONSTITUTION

Among the various features of the Constitution two of an outstanding
nature d^erve special mention. The integration of the Indian States
represents a historic achievement without a parallel in history. Rajsndra
Prasad justly observed :

It must be said to the credit of the Princes and the people of the States
no less than to the credit of the States Ministry under the wise and far-
sighted guidance of Sardar VaUabhbhai Patel that by the time we have
been able to pass this Constitution, the States are now more or less in
the same position as the Provinces and it has become possible to
describe all of them including the Indian States and the Provinces as States
in the Constitution. The announcement which has been made just now by
Sardar VaUabhbhai Patel makes the position very clear, and now there
is no difference between the States, as understood before, and the
Provinces in the new Constitution’.

That this achievement was secured with the tmanimous support of the
Princes and people alike made it all the more significant.

The language issue, it may be recalled, revealed a deep division even
within the ranks of the Congress party. It was in connection with the
language issue that, as early as 1948, T. T. Krishnamachari warned the
Assembly that “Hindi imperialism” might threaten the very integrity of
India’. And until the last day a spirit of tension continued to characterize the
fffoceedings. On September 12, 1949, when the language provisions were
under discussion. President Rajendra Prasad found it necessary to warn
the members “not to let fall a single word or expression which might hurt
or cause offence”. He specifically stressed the need for securing general
acceptability :

The decision of the House should be acceptable to the country as a whole.
Even if we succeed in getting a particular proposition passed by a
majority, if it does not meet with the approval of any considerable section
of the people in the country, either in the north or in the south, the
implementation of the Constitution will become a most difficult problem"’.

Abul Kalam Azad was almost bitter in his comment:

I was totally disappointed to find that from one end to the other, narrow-
mindedness reigned supreme... Narrow-mindedness means pettiness and
density of mind and refusal to accept higher, nobler and purer thoughts.
I would like to tell you that with such small minds we cannot aspire to
be a great nation in the world*.

On the other hand, Govind Das was equally uncompromising: w'here there
was a difference of opinion, he maintained that the matter should be settled
by votes, and whatever decision was arrived at by the majority should be

‘C. A. Deb., Vol. XI, p. 986.

Wd., Vol. VII, p. 235.

mid.. Vol. IX, p. 1312.

Wd., p. 1457.

SUMMING UP 841

accepted by the minority respectfully and without bitterness’.

By the afternoon of December 14, however, the whole atmosphere seemed
to have undergone a change. Agreement had been reached on the Munshi-
Gopalaswami Ayyangar formula, and the language provision was accepted
without any dissentient voice. The ever-present desire of the Assembly for
general agreement had been achieved, and Rajendra Prasad was able to claim;
Our Constitution so far has evoked many controversies, and raised many
questions which had very deep differences ; but we have, somehow or other,
managed to get over them all. This was one of the biggest gulfs which
might have separated us. . . We have done the wisest thing possible
and I am glad, I am happy, and I hope posterity will bless us for this®.

The Constitution as evolved by the Assembly was a federal, democratic *
structure, based on the consent of the people, both inside and outside the
Assembly. But the problems facing independent India were formidable.
The country was only beginning to recover from the strains resulting from
the large-scale movement of population in the wake of the partition ; and
there were other urgent and difficult economic and political problems to
tackle. The question inevitably arose ; w'ould India be able to maintain
her democratic Constitution, or would she lose it again? Ambedkar, the
pilot of the Constitution, was content to answer this question with an “I
do not know”. He pointed to the absence of social equality. “On the social
plane, we have in India a society based on the principle of graded inequality
which means elevation for some and degradation for others”. He referred
to Indians as a people “divided into several thousands of castes”: and he
concluded ;

If we wish to preserve the Constitution in which we have sought to
enshrine the principle of government of the people, for the people and by
the people, let us resolve not to be tardy in the recognition of the evils
that lie across our path and which induce people to prefer government
for the people to government by the people, nor to be weak in our
initiative to remove them. That is the only way to serve the country^
Rajendra Prasad was equally conscious of these difficulties. He referred
to the fissiparous tendencies in the various elements of the country’s life—
communal differences, caste differences, language differences, provincial
differences and so forth. And he therefore found it appropriate to close
the proceedings of the Assembly with a prayer, mixed with a certain measure
of optimism, that the country might be given men of strong character, men
of vision, men who would not sacrifice the interests of the country at large
for the sake of smaller groups and areas and who would rise above the
prejudices bom of these differences*.

'C. 4. Oeb., Vol. IX, p. 1325.

“/Wd.. p. 1491.

®/b/d., Vol. XI, pp. 978-81.

‘■Ibid: pp. 993-4.

APPENDIX I

BIOGRAPHICM. SKETCHES
(i) President of the Constituent Assembly

RAJENDRA PRASAD (1884-1963): Advocate, Calcutta and Patna High Courts,
1911-20; General Secretary, Indian National Congress; President, Indian National
Congress, 1932, 1934, 1939, 1947-8; Member, Food and Agriculture in the Interim
Government of India, 1946-7 and Minister, Food and Agriculture, Government of
India, from August 1947; Resigned ministership in January 1948; President, Constituent
Assembly, 1946-50; was Chairman of: Rules of Procedure Committee, Steering
Committee, Finance and Staff Committee and Ad hoc Committee on the National
Flag; President of India, 1950-62.

(ii) Drafting Committee Members

B. R. AMBEDKAR (1893-1956): Bar-at-Law; Delegate, Round Table Conference,
London, 1930-2; Delegate, Joint Select Committee on Indian Constitutional Reform,
1933-4; Founder, Scheduled Castes Federation; Member (Labour), Governor-GeneraFs
Executive Council, 1942-6; Minister of Law, Government of India, 1947-51.

In the Constituent Assembly —

Chairman Drafting Committee

Member Committee on Functions

” Ad hoc Committee on the National Flag

” Advisory Committee

” Fundamental Rights Sub-Committee

” Minorities Sub-Committee

” Union Constitution Committee

” Ad hoc Committee on the Supreme Court

K. M. MUNSHI (1887- }: Advocate, Bombay High Court; Author and Novelist;
Secretary, Bombay Home Rule League, 1919-20; Member, All-India Congress
Committee, 1930-6 and 1947; Member, Bombay Legislature, 1927-46; Home Minister,
Government of Bombay 1937-9 : Agent-General to the Government of India at
Hyderabad, 1947-8; President, Bharatiya Vidya Bhavan since 1938; Minister of
Food and Agriculture, Government of India, 1950-52; Governor of Uttar Pradesh,
1952-7. ■

In the Constituent Assembly-

Chairman Order of Business Committee

Member Rules of Procedure Committee

” Steering Committee

Ad hoc Committee on the National Flag

” Advisory Committee

Fundamental Rights Sub-Committee'

Minorities Sub-Committee
Union Powers Committee

” Union Constitution Committee

” A r/ Committee ■ on the Supreme Court

Drafting Committee

APPENDICES

843

ALLADI KRISHNASWAMI AYYAR (1883-1952): Advocate, Madras Higli' Court;
Advocate Genera! , Madras, 1929-44.

In the Constituent Assembly— '

Member Rules of Procedure Committee

Credentials Committee
Functions Committee
Advisory Committee
Fundamental Rights Sub-Committee
Union Powers Committee
Union Constitution Committee
Ad hoc Committee on the Supreme Court
” Drafting Committee

N, GOPALASWAMI AYYANGAR (1882-1953): Madras Civil Service, 1905-37;
Prime Minister of Kashmir, 1937-43; Member of the Sapru (Non-Party) Committee,
1945; Minister without portfolio. Government of India, 1947-8; Leader of the Indian
Delegation to the U.N. Security Council, 1948; Minister of Transport and Railways,
Government of India, 1948-52 and for States in addition. 1950-2; Minister of Defence,
1952-53.

In the Constituent Assembl}^ —

Member Rules of Procedure Committee

Order of Business Committee
Functions Committee

” States Committee

Union Powers Committee
Union Constitution Committee

” Committee on Chief Commissioners’ Provinces

” Drafting Committee

D. P. KHAITAN (1888-1948): Industrialist of Bengal; Commissioner, Calcutta

Corporation, 1921-4 and 1936-8: Member, Legislative Council, Bengal, 1922-6; Member,
Indian Delegation to the I.L.O., Geneva, 1928; Member, Governing Body of the
International Labour Conference, 1929.

In the Constituent Assembly —

Member Union Powers Committee

Drafting Committee

N. MADHAVA RAU (1887- ): Mysore Civil Service; Dewan of Mysore, 1941-6;
Constitutional Adviser, Eastern States (Orissa) Union, July 1947.

In : the Constituent Assembly — ' ■

Member Advisory Committee

Drafting Committee

T. T. KRISHNAMACHARI (1899- ): Industrialist of Madras; Member, Madras
Legislative Assembly, 1937-42; Member, Central Legislative Assembly, ■ 1942-5,
Minister in the Government of India, Commerce and Industry 1952-6; was Minister
of Iron and Steel in addition, 1955-7; Finance, 1956-8, Minister without portfolio.
1962: Economic and Defence Coordination, 1962-3; Finance, 1963-5.

In the Constituent Assembly— '

Member Drafting Committee

MUHAMMAD SAADULLA (1886-1961): Lawyer in Gauhati, 1909-19; Advocate,
Calcutta High Court, 1920-4; Member, Assam Legislative Council, 1912-20 and 1923
onwards; Minister of Education and Agriculture of Assam, 1924-9; Minister of
Finance and Law, Government of Assam, 1930-4; Premier of Assam, 1937-8 and
again 1939-42.'.

, In the Constituent .Assembly— ■■

Member Steering Committee

844

FRAMING OF INDIA’S CONSTITUTION

Member

Advisory Committee
Minorities Sub-Committee
Drafting Committee

(iii) Chairmen of other Committees

VALLABHBHAI PATEL (1875-1950); Bar-at-Law; Advocate of Ahmedabad;
Associated with Gandhi since 1916; titled ‘Sardar’ by Gandhi for conducting Bardoli
campaign; President, Karachi Session of the Indian National Congress, 1931; Member,
Home, Information and Broadcasting, Interim Government of India, 1946; Deputy
Prime Minister and Minister of . Home Affairs, Information and Broadcasting and
Stales, Government of India, 1947-50.

In the Constituent Assembly —

Chairman Advisory Committee

Provincial Constitution Committee
Member Steering Committee

States Committee

J. B. KRIPALANI (1888- ): Professor, Banaras Hindu University, !9I9, Principal,
Gujarat Vidya Pith, 1922-7; President, Indian National Congress, 1946-7; elected to
Lok Sabha, 1952, 1957, 1963 and 1967,

In the Constituent Assembly-

Chairman Fundamental Rights Sub -Committee

Member Steering Committee

** Advisory Committee

’* Provincial Constitution Committee

JAWAHARLAL NEHRU (1889-1964): Bar-at-Law; Secretary, Home Rule
League, 1918; General Secretary, All-India Congress Committee, 1929; President,
Indian National Congress, 1929-30, 1936, 1937 and 1946; Vice-President, Interim
Government of India, 1946-7; Prime Minister and Minister of External Affairs,
Government of India, 1947-64.

In the Constituent Assembly —

Chairman States Committee

” Union Powers Committee

” Union Constitution Committee

B. PATTABHI SITARAMAYYA (1880-1957): Medical Practitioner; !9CKi-!6,
Author; Member, All-India Congress Committee, 1916-52; President, Indian National
Congress, 1948-50; President, All-India States People’s Conference, 1936, 1938 and
1946-8; Governor of Madhya Pradesh, 1952-6,

In the Constituent Assembly —

Chairman' Committee on Chief Commissioners’ Provinces

Member Rules of Procedure Committee

■ ” ' Ad hoc Committee on the National Flag

States Committee
Union Powers Committee

” Provincial Constitution Committee

H. C. MOOKHERJEE (1877-1956): Educationist of Bengal; Professor, Calcutta
University, 1918-37; President, All-India ■ Council of Christians; Member, Bengal
Legislative Assembly, ,1937-42; Governor of West Bengal, !95:l-6.

In the Constituent Assembly —

Vice-President of the Assembly

Chairman Minorities Sub-Committee

• Member Finance and Staff Committee

** Advisory Committee

APPENDICES

845

GOPINATH BARDOLOI (1891-1950): Advocate; Assistant Secretary, Gauhati
Congress, 1926; Leader of the Congress Party, Assam Legislative Assembly, 1937-8;
and 1946; Premier of Assam from Sept. 1938 to Nov. 1939, ' and again 1946-9.

In the Constituent Assembly —

Chairman North-East Frontier Tribal Areas and Assam

Excluded and Partially Excluded Areas Sub-
Committee

Member Rules of Procedure Committee

” Advisory Committee

A, V. THAKKAR (1869-1961): Social Worker, Member, Servants.of India Society;
worked for the uplift of backward classes and aboriginal tribes; General Secretary,
Ail-India Harijan Sewak Sangh.

In the Constituent Assembly —

Chairman Excluded and Partially Excluded Areas (other

than those in Assam) Sub-Committee

Member Advisory Committee

North-East Frontier Tribal Areas and Assam
Excluded and Partially Excluded Areas
Sub-Committee

(iv) Committee Chairmen who were not Members of the Assembly

S. VARADACHARI (1881- ): Lawyer; Editor, Madras Law Journal; Judge,
Madras High Court, 1934-9; Judge, Federal Court, 1939-46; Chairman, ad hoc
Committee of the Constituent Assembly on the Supreme Court.

NALINl RANJAN SARKAR (1888-1953): Industrialist; President, Bengal National
Chamber of Commerce; Mayor of Calcutta, 1934-5; Member, Governor-GeneraFs
Executive Council for Education, Health and Lands and later for Commerce, Industry
and Food, 1941-2; Minister of Finance, Commerce and Industries, West Bengal
Government, 1947; Chairman, Expert Committee of the Constituent Assembly on the
Financial Provisions of the Union Constitution.

APPENDIX 11

LIST OF PERSONS WHO SERVED AS MEMBERS OF THE COMMITTEES
OF THE CONSTITUENT ASSEMBLY

Committee on the Rules of Procedure
Rajendra Prasad (Chairman)

■Jagjivan Ram
Sarat Chandra Bose
Frank Anthony
Ailadi Krishnaswarni Ayyar
Bakshi Tek Cliand
Rafi Ahmad Kidwai
Joseph Alban D’Souza
N. Gopalaswami Ayyangar
Purushottamdas Tandon
Gopinath Bardoloi

B. Pattabhi Sitaramayya
Mehr Chand Khanna
K. M. Munshi
Harnam Singh

Mrs* G. Durgabai
Steering Committee

Rajendra Prasad (Chairman)

Abiil Kalani Azad

Valiabhbhai Patel

Ujjal Singh

Mrs. G. Durgabai

S. H. Prater

Kiran Shankar Roy

Satyanarayan Sinha

M. Ananthasayaiiam Ayyangar

Chaman Lai

K. M. Munshi

a N. Mane

P. Govinda Menon

C. S. Venkatachar
Muhammad Saadulla

Abdul Kadar Mohammad Shaikh
Surendra Mohan Ghose
Balwant Rai Mehta
R. M. Nalavade
Sui’esh Chandra Mazumdar
lagat Narain Lai

J. B. Kripalani
Gurmokh Singh Musafir

K. Chengalvaraya Reddy
Finance .and Staff Committee

Rajendra Prasad (Chairman)
Satyanarayan Sinha ,

Jaipal Singh
V. L Muoiswami Pillas
C. E. Gibbon
N. V. Gadgil
Sri Prakasa
Govind Das
Rajkumari Amrit Kaur
Harnam Singh
H. C. Mookherjee
V. T. Krishnamachari
Bhawanji A. Khimji
K. Santhanam

Credentials Committee

Ailadi Krishnaswarni Ayyar (Chairman)

P. K. Sen

Bakshi Tek Chand

Sarat Chandra Bose

Frank Anthony

B. Pocket

Ram Sahai

House Committee

B. Pattabhi Sitaramayya (Chairman)

Radhanath Das

Abdul Ghalfar Khan

Akshay Kumar Das

Jairamdas Daulatram

Shri Ram Sharma

Dip Narayan Sinha

Nandkishore Das

Mohan La! Saksena

R. R. Diwakar

Muhammad Hassae

Upendra Nath Barman

Jainarayan Vyas

B. Shiva Rao

H. V. Kamath

Mrs. Animu Swamiiiathao

Deshbandhu Gupta

Order of Business Committee
K, M. Munshi (Chairman)

N. Gopalaswami Ayyangar
Biswanath Das

Ad hoc Committee on the National Flag
Rajendra Prasad (Chairman)

Abu! Kalam Azad

APPENDICES

847

C.. Rajagopalachari

H. C. Mookherjee

Mrs. Sarojini Naidu

Joseph Alban D’Souza.

K, M. Panikkar

P. K. Salve*

K. M. Munshi

J. L. P. Roche-Vlctoria*-

B. R. Ambedkar

S. H. Prater

Frank Anthony

B. Pattabhi Sitaramayya

M. V. H. Collins*

Hiralal Shastri

Homi Mody*

Satyanarayan Sinha

M. R. Masani

; Baldcv Singh*

R. K, Sidhva

S. N. Gupta*

Rap Nath Brahma*

Committee^ on the Functions of the

Abdul Ghaffar Khan

Constituent Assembly

Abdul Samad Khan

G. V, Mavalankar (Chairman)

J. J. M. Nicliols-Roy

Hussain Imam

Mayangmokcha*

Piirushottamdas Tandoii

Phool Bhan Shaha*

B. R. Ambedkar

Devendra Nath Samanta

Aliadi Krishnaswami Ayyar

Jaipal Singh

N. Gopalaswami Ayyangar

J. B. Kripalani

B. L. Mitter

Abul Kalam Azad

States Committee

C. Rajagopalachari

Jawaharlai Nehru (Chairman)

Rajkumari Amrit Kaur

Abul Kalam Azad

Mrs. Hansa Mehta

Valiabhbhai Patel

Govind Baiiabh Pant

B. Pattabhi Sitaramayya

Gopinath Bardoloi

Shankarrao Deo

Piirushottamdas Tandon

N. Gopalaswami Ayyangar

Aliadi Krishnaswami Ayyar

Advisory Committee on Fundamental

K. T. Shah

Rights, Minorities and Tribal and

K. M. Munshi

Excluded Areas

Amritlai V. Thakkar

Valiabhbhai Patel (Chairman)

M, Ruthnaswamy*

Jairamdas Daulatram

Rajkrishna Bose

Mehr Chand Khanna

K. M. Panikkar

Gopi Chand Bhargava

Aliba Imti*

Bakshi Tek Chand

Hifzur Rahman*

Profulla Chandra Ghosh

AH Zaheer*

Surendra Mohan Ghose

Abdul Qayum Ansari*

Syama Prasad Mookerjee

Khaliquzzaman

Prithvi Singh Azad

Muhammad Saadulla

Dharam Prakash

Ismail Chundrigar

H. J. Khandekar

Jafar Imam*

lagjivan Ram

Abdul Sathar Haji Ishaq Sait

P. R. Thakur

Kasturbhai Laibhai*

B. R. Ambedkar

Kameshwara Singh of Darbhanga

V. 1. Muniswami Pillai

N. Madhava Ran

Jogendra Singh

Mohan Sinha Mehta

Baldev Singh* .

M. S. Aney

Pratap Singh

Gopaldas Desai

Harnam Singh

Gokuibhai Bhatt

Ujjal Singh

K. Chengalvaraya Reddy

Kartar Singh ,

Govind Das

*Not an Assembly Member.

848

FRAMING OF INDIA’S CONSTITUTION

Advisory Committee on Fundamental
Rights, etc. — contd.

Lakshmi Kanta Maitra
Thakurdas Bhargava
Gurmukh Singh Musafir
Begum Aizaz Rasul
Hussainbhoy A. Lalliee*

Tajaraul Husain
Sarangdhar Das

Sub-Committees of the Advisory
Committee

Minorities Sub-Committee

H. C. Mookherjee {Chairman)
Jagjivan Ram
Abul Kalam Azad

B. R. Ambedkar
Jogendra Singh

Syama Prasad Mookerjee
UJjal Singh
Harnam Singh
H, J. Khandekar
P. R, Thakur
Homi Mody*

P. K. Salve*

S. H, Prater
Frank Anthony

C. Rajagopalachari
Rajkumari Amrit Kaur
Jairamdas Daulatram
R. K. Sidhva

Rup Nath Brahma*

M. Ruthnaswamy*

M. V. H. Collins*

Joseph Alban D’Souza
K. M. Munshi
Govind Ballabh Pant
Hifzur Rahman*

Ali Zaheer*

Abdul Qayum Ansari*
Khaliquzzaman
Ismail Chundrigar
Muhammad Saadulla
Kameshwara Singh of Darbhanga
Govind Das
Kasturbhai Laibhai*

Lakshmi Kanta Maitra
Thakurdas Bhargava
Fundamental Mights Sub-Committee
L B. Krlpalmi (Chairman)

M. R. Masani
Rajkumari Amrit Kaur

AUadi Krishoaswami Ayyar
K. T. Shah
K. M. Munshi
Harnam Singh
Abul Kalam Azad
B. R. Ambedkar
Jairamdas Daulatram
Mrs. Hansa Mehta
K. M. Panikkar

North-East Frontier Tribal Areas and
Assam Excluded and Partially
Excluded Areas Sub-Committee
Gopinath Bardoloi (Chairman)

J. J. M. Nichois-Roy
Rup Nath Brahma*

Aliba Imti*

A. V. Thakkar

Excluded and ■ Partially Excluded ‘Areas
(other than those in Assam) .Sub-
Committee

A. V. Thakkar (Chairman)

Jaipal Singh

Devendra Nath Samanta
Phool Bhan Shaha*

Jagjivan Ram
Rajkrishna Bose
Prcfulla Chandra Ghosh
Union Powers Committee

Jawaharlai Nehru (Chairman)

Sarat Chandra Bose

B. Pattabhi Sitaramayya
Govind Ballabh Pant
Jairamdas Daulatram
Biswan ath Das

N. Gopalaswami Ayyangar
Bakshi Tek Chand

Alladi Krishnaswami Ayyar

D. P. Khaitan
M. R. Masani
B. L. Mitter

K. M. Munshi

V. T. Krishnamachari
Maharaj Hinimat Singhji
A. Ramaswami Mudaliar
Union Constitution Committee
Jam^aharlal Nehru (Chammm)

Abul Kalam Azad
Syama Prasad Mookerjee
Govind Ballabh Pant
Jagjivan Ram

O. R. Ambedkar

*Not an Assembly Member.

APPENDICES

849

Aliadi Krisliiiaswami Ayyar
K. 'M. MumM
K. T. Shah
V. T. Krishnamachari
K. M. Panikkar
N. Gopalaswami Ayyaogar
P. Goviiida Menon
M. A. Sriiiivasan
B. H. Zaldi

Ad hoc' Committee on the Supreme Court
, S, Varadachari^ (Chairman)

AHadi Krishnaswami Ayyar
B. L. M liter
Baksiii Tek Chand
K. N, Katju
B. R. Ambedkar
K. M, Munshi

Ptovinda! Constitution Committee
Vallablibliai Patel (Chairman)

P. Subbarayan
B. Pattabhi Sitaramayya

B. G. Kiier
Brijial Biyani
K, N. Katju
Fhulan Prasad Verma
Harekriishna Mahatab
Kirati Shankar Roy
Jairamdas Daulatram
Ujjal Singh

Roliini Kumar Choudhury
Chaman La!

P. K. Sen

C. M. Poonacha
Radhanath Das
Satyanarayan Sinlia
Rati Ahmad Kidwai

Mrs. Hansa Mehta
H. C* Mookherjee
Rajkumari Amrit Kaur

J. B. Kripalani
Shankarrao Deo

R. R. Diwakar

S. Nagappa

Committee on Chief Commissioners^
Provinces

B. Pattabhi Sitaramayya (Chairman)

N. Gopalaswami Ayyangar

K. Santhanam
Deshbandhu Gupta
Mukut Bihari Lai Bliargava

C. M. Poonacha
Hussain Imam

Drafting Committee

B. R. Ambedkar (Chairman)

Ailadi Krishnaswami Ayyar
N. Gopalaswami Ayyangar
K. M. Munshi
Muhammad Saadulla
B. L. Mittcr

D. P. Khaitan**

N. Madhava Rau

T. T. Krishnamachari

Expert Committee on the Financial
Provisions of the Union Constitution
Nalini Ranjan Sarkar* (Chairman)

V. S. Sundaram*

M. V. Rangachari*

Linguistic Provinces Commission
S. K. Dar* (Chairman)

Panna Lall*

Jagat Narain Lai

*ISfot an. Assembly Member.

**Di■ed^m 1948. . " ,

BIBLIOGRAPHY

BOOKS

Ahmad, Z. A., National Language for India (Kitabistan, Bombay, 1943),

Aiyangar, N. Rajagopala, The Government of India Act, 1935 (Madras Law Journal
Office, Madras, 1937).

Banerjee, A. C., Indian Constitutional Documents, VoL 11, 2od edn. (A. Mukherjee
<& Co., Calcutta, 1948).

Basu, D. D., Commentary on the Constitution of India (S. C, Sarkar Sc Sous, Calcutta,
1952).

Bcsant, Annie, How India Wrought for Freedom (Theosophical Piiblishiog House,
Madras, 1915).

Bose, S. M., The Working Constitution in India (Oxford University Press, Calcutta,
1939).

Brecher, Michael, Nehru — A Political Biography (Oxford University Press, London.
1959).

Coupland, R., The Constitutional Problem in India (Madras, 1945).

Gandhi, M. K., Our Language Problem (Bharatiya Vidya Bhavan, Bombay, 1965).

Gandhi, M. K., Young India, 1919-1912 (Tagore & Co., Madras, 1922).

Gwyer and Appadorai, Speeches and Documents on the Indian Constitution (Oxford
University Press, 1957), Vols. I and IL

Higgins, Rosalyn, The Development of International Law through the Poiitica! Organs
of the United Nations (Oxford University Press, 1963).

Ilbert, The Government of India (Clarendon Press, Oxford, 1915).

Joshi, G. N., The New Constitution of India (Calcutta, 1944).

Lee-Warner, William, The Native States of India, 2nd edn. (Macmillan, London,
1910).

Menon, V. P., The Story of the Integration of Indian States (Orient Lotigmaiis,
Bombay, 1956).

Menon, V. P,, The Transfer of Power in India (Orient Longmans, Bombay, 1957).

Natesan, G, A., The Indian National Congress, 2nd edn. (Madras, 1917).

Parry, Clive, British Nationality and Citizenship Laws of the Commonwealth and
Ireland (Stevens Sc Sons Ltd., London, 1957).

Philips, C. H., Select Documents on the History of India and Pakistan (Oxford
University Press, London, 1962), Vol. IV.

Phillips, O. Hood, The Constitutional Law of Great Britain and the Commomveaiih
(Sweet and Maxwell, London, 1957).

Rau, B. N., Constitutional Precedents (Series I, Series II, and Series HI) (Manager
of Publications, Delhi, 1946).

Rau, B. N., India's Constitution in the Making, 2nd edn. (Allied Publishers, Bombaw

,, 1963).

Satya Pal and Prabodh Chandra, Sixty Years of Congress (Lions Press. Lahore.
19461

Schuster, George, and Wint, Guv, India and Democracv (Macmillan, London,
1941).

Sinha, A. N., Law of Citizenship and Aliens in India (Asia Pulilisliiog House, Bomba w

.. 1962).,

BIBLIOGRAPHY g51

Sitaramayya, B. Pattabhi, The History of the Indian National Congress (Padutna
Publications, Bombay, 1946-7), Vols. I and II.

Subramanyan, M., Why Cripps Failed (Hindustan Times Press, New Delhi, 1943).
Tendulkar, D. G., Abdul Ghaffar Khan (Popular Prakashan, Bombay, 1967).
Tiitman, H. Hessel, James Ramsay MacDonald (Jarroids, London).

Waley, S. D., Edwin Montagu (Asia Publishing House, Bombay, 1964).

DEBATES, REPORTS AND OTHER DOCUMENTS

(a) Debates

House of Commons Debates (U.K.), Vols. 83 (1900), 198 (1908), 260 (1931), 276
(1933), 352 (1939), 364 (1940), 420 (1946).

Legislative Assembly Debates (India), Vols. IV (1924), VI (1925).

Constituent Assembly Debates (IndiaX Vols. I to XII (1946-50).

(b) Reports

Report on Indian Constitutional Reforms (Montagu-Chelmsford Report) (Superin-
tendent, Govt. Printing, India, Calcutta, 1918).

Report of the Royal Commission on Superior Services in India (Lee Commission)
(H. M. Stationery Office, London, 1924).

Report of the Committee appointed by the All-Parties Conference to determine
the principles of the Constitution of India (Nehru Report) (Allahabad, 1928).

Report of the Indian Statutory Commission (Simon Commission) (Central Publication
Branch, Calcutta, 1930).

Indian Round Table Conference (Nov. 1930 — Jan. 1931), Sub-Committee Reports,
Conference Resolution and Prime Ministcris statement (Central Publication
Branch, Calcutta, 1931).

White Paper — Proposals for Indian Constitutional Reform, 1933 (Commd. 4268)
(H. M. Stationery Office, London).

Report of the Joint Select Committee on Indian Constitutional Reform, 1934
(H. M, Stationer}’ Office, London).

Report of the Royal Commission on Dominion-Provincial Relations (Rowell-Sirois
Report, Canada, 1940) (Government Stationery Office, Montreal).

Constitutional Proposals of the Sapru Committee (Padma Publications Ltd.,
Bombay, 1945).

White Paper on Indian States (Manager of Publications, Delhi, 1950).

Law Commission of India, Fifth Report (Manager of Publications, Delhi, 1957).

Indian Annua! Register (Mitra's) 1921-23; 1930-46 (Annual Register Office,

Calcutta).

Indian Quarterly Register 1924-29 (Annual Register Office, Calcutta).

Memoratuia submitted to the Indian Statutory Commission by the Government of
India, Voi. V (Manager of Publications, Delhi, 1930).

Indian Round Table Conference, Proceedings of the Federal Structure Committee
and Minorities ' Committee (Second Session), Vol. Ill, 1931 (H. M. Stationery
Office, London).

Foreign Relations of the United States, Vol. I (1942), Vol IV (1943) (U.S. Govt
Printing Office, Washington, 1960). ,

Constitutional Provisions concerning Social and Economic Policy (International
Labour Office, Montreal, 1944).

Year Book of^ Human Rights for 1947 (United Nations).

Indian. National Congress, Resolutions on Language Policy, 1949-1965
(All-India Congress Committee).

852

FRAMING OF INDIA’S CONSTITUTION

STATUTES

(a) United Kingdom
Commonwealth of Australia Act, 1900.

British Nationality and Status of Aliens Act, 1914.

British Nationality Act, 1948.

Halsburys Laws of England, Vol. I, 3rd edn. (Butterworths, London, 1952).
\o} India

Government of India Act, 1919.

Government of India Act (1924 Reprint).

Indian Naturalization Act, 1926,

Government of India Act, 1935.

Reciprocity Act, 1943.

Citizenship Act, 1955.

NEWSPAPERS AND PERIODICALS

Manchester Guardian, August 1, 1942.

Calcutta Weekly Notes, Vol. LI, No. 27, May 26, 1947.

New York Times, August 13, 1947.

The Hindustan Times (Delhi), December 14, 1946,

The Hindu (Madras), March 1940; December 14 1946: August 7, 8, 11, 13. 24. 25,
29, 1949, September 3, 13, 1949.

INDEX

Abdul Hamid, 102

Abdul Kadar Mohammad Shaikh,

102

Abdiir Rouf, Syed, 104, 1S9, 191, 268
Abolition of Privy Council Jurisdic-
tion Act (1949), 494-5
Abor Hills District, 590
Aboriginals, 749, 761, 762
Acliiiit Ram, 103

Ad Hoc Committee on Citizenship,
152-3, 154, 155, 156, 253-4
Aden, despatch of Indian troops to, 26
Adult franchise, 68, 386, 470-2, 835,
836; as fundamental right, 471; elec-
tions to House of the People ■ and
Legislative Assemblies to be on the
basis of, 471; Fundamental Rights
Advisory Committee on, 471; Funda-
mental Rights Sub-Committee on,
471; Minorities Sub -Committee on,
471; Nehru Report on, 470; not to
be basis for election to Constituent
Assembly, 93; Special Committee on,
471; suggestion regarding enfranchise-
ment of tribal areas in Assani, 761;
see clso Franchise and Elections
Advisory Boards for Union and Provin-
ces, appointment and functions of, 405
Advisory Board on Preventive Detention,
241; see also Preventive Detention
Advisory Committee on Directive Prin-
ciples of State Policy, 114
Advisory Committee on Fundamental
Rights, Minorities and Tribal and Ex-
cluded and Partially Excluded Areas,
see Fundamental Rights Advisory
Committee

Advocate-General, 409-11: duties of,
409; fiinctions in pre-Constitution
period, 408; of Madras, Bombay and
Bengal, 408; question of member-
ship of Council of Ministers, 410;
retirement of, 410-11; term of otSce
of, 411; to appear in all courts on
behalf of the State, 411; under the
Government of India Act (1935), 408;
of Bengal, additional functions as Law
Officer of Government of India, 408
Aga Khan, 3, 466

Ahmed Ibrahim, K. T, M., 102, 274,
294 , . .

Aiyar, C. P. Ramaswami, 520, 523 ...
Aizaz Rasul, Begum, 103, 278, 431 ...
Aiaigarh, 556

Ajmer, see Ajmer-Merwara
Ajmer-Merwara, 88, 95, 99, 100, 137,
139, 425, 545, 558, 559, 561, 562, 564,
565, 568; Judicial Commissioner: in,
567; members of Constituent Assembly-

from, 104; special reasons, for res-
ponsible government for, 565
Akalkot, merger with Bombay, 554
Akbar Hydari, 20
Alagesan, O.V., 101, 631
Alexander, A. V., First Lord of Ad-
miralty, member of Cabinet Mission
to India, 64
Ali, Rehmat, 21
All Zaheer, 756, 758
Aligarh University, 60S, 637
Alipura, 556
Alirajpur, 557

Allahabad, 41; meeting of All-India
Congress Committee at, 54
Allahabad High Court, 496; amalga-
mation witli Lucknow Chief Court,
496

Ail-Burma Indian Congress, 160
Allied Nations, see Allied Powers
Allied Powers, 6, 30, 37, 38, 41, 44,
45, 46, 47, 52
Allied War Councils, 52
Allies, see Allied Powers
Ail-India Adi Hindu Depressed Classes
Association, 750

Ail-India Congress Committee, 46, 54,
80; Allahabad resolution, 41, 54; Cal-
cutta resolution regarding despatch
of Indian troops to Aden and amend-
ment of Government of India Act,
26-7; meeting at Bombay, 47; re-
jects resolution on Pakistan, 54; re-
solution regarding constitutional re-
forms, 47, 48; resolution regarding
British rale in India, 47; see also
Indian National Congress
Ali-India Federation of Provinces and
Princely States, 18, 19
All- India Hindi Sahitya Sammelan, 791
Ali-India Landholders’ Association,
98

Ali-India Local Authorities Union, 674;

President of, see Sidhva, R. K.
Ail-India States Peoples’ Conference,
520; resolution , re. Political Depart-
ment and other agencies, 527
All-India Women’s Conference, 97-8
All-Parties Conference, 51, 52, 57, 172,
175; report on communal eiectorate,
467; resolution regarding fundamen-
tal rights, 320; see also Nehru
Committee
Alwar, 99, 557

Amamagar (Thana Devli), 556
Ambedkar, B. R., Chairman of the
Drafting Committee, 97, 102, 114, 118,
124, 125, 129, 131, 140, 141, 142, 144,
145, 150, 152, 153, 164, 165, 166, 167,

856

FRAMING OF INDIA’S CONSTITCmON

176, 177, 179, 182, 183, 189, 191, 192,
193, 194, 197, 200, 201, 202, 205, 210,
211, 214, 215, 220, 221, 222, 225, 226,
228, 231, 234, 235, 238, 239, 240, 242,
243, 244, 245, 247, 249, 250, 251, 252,
253, 254, 256, 257, 258, 266, 268, 270,
274, 277, 280, 281, 285, 289, 301, 302,
303, 305, 308, 309, 310, 311, 312, 313,
314, 317, 321, 330, 331, 332, 334, 339,
340, 341, 342, 344, 347, 348, 349, 350,
351, 352, 355 358, 359, 365, 366, 371,
375, 376, 377, 378, 379, 389, 395, 396,
400, 401, 402, 404, 405, 406, 411, 416,
422, 432, 434, 435, 436, 437, 438, 439,
440, 441, 451, 452, 453, 454, 455, 461,
462, 463, 464, 465, 470, 477, 491, 492,
493, 494, 503, 504, 505, 507, 509, 510,
539, 543, 549, 550, 566, 567, 575, 576,
580, 581, 582, 587, 588, 589, 620, 627,
628, 630, 631, 632, 634, 635, 636, 637,
639, 647, 648, 668, 669, 670, 671, 672,
673, 674, 676, 678, 679, 680, 681, 682,
685, 686, 687, 688, 693, 694, 695, 696,
702, 703, 706, 714, 718, 720, 730, 731,
732, 734, 736, 738, 748, 749, 755, 756,
758, 766, 774, 775, 776, 777, 785, 792,
794, 812, 813, 814, 815, 816, 817, 818,
819, 821, 823, 826, 829, 830, 831, 832,
835, 836, 837, 838, 839, 841
America, see United States of America
American Constitution, see United
States Constitution; American courts,
233

Amery, L. S., 35, 49, 744; statement

in House of Commons on political
reforms in India, 61, 62
Ammu Swaminadhan, Mrs., 101
Amrit Kaur, Rajkumari, 104, 185, 25 i,
252, 260, 283, 324, 325, 752, 756, 824
Amritsar, tragedy at, 6, 7
Andaman and Nicobar Islands, 137,
139, 146, 147, 197, 425, 426, 442, 558,
560, 563, 565, 568; developed as a free
colony, 558 ; used to be a penal
settlement, 558

Andhra Pradesh, 146, 147, 406 ; second
chamber in, 457
Anglo-American hloc» 51
Angio-Egyptian Agreement (1922), 31
Anglo-Indian Association, 98
Anglo-Indians, see Minorities
Attgui, 570, 577
Annie Besant, Mrs., 3, 8, 171
Annie Mascarene, Mrs., 105
Anthony, Frank, 104, 124, 262, 629, 751,
752

Appropriation Acts, in Parliament,
440-1

Arabic numerals, to be used for: all
purposes of Union and State, 790,
792

Armed Forces, application of funda-
mental rights to,. 312
'Arthasastm, 'hy Kautiiya, 319
Asaf 'All, 107
Asava, Gokul , Lai, 105 ' .

Assam, 57, 68, 69, 73, 88, 90, 95, 96,
99, 100, 127, 136, 137, 146, 147, 166,
167, 215, 216, 289, 449, 465, 467, 496,
510, 543, 544, 570, 571, 573, 574, 575,
576, 582, 583, 586, 587, 5S8, 656, 657,
660, 668, 677, 679, 680, 684, 688, 689,
747, 752, 758, 761, 769, 772, 774, 775,
776, 794; administration of tribal
areas in, 139, 572 ; District and
Regional Councils for tribal districts
of, 449; grants-in-aid in respect of
tribal areas, 680,. 684 ; memhers of
Constituent Assembly from, 104 ;
Muslim League ministry in, 63 ;
North-East Frontier (Assam) Tribal
and Excluded Areas Sub-Comiiifttee s
report, 761-3; Premier of, see Bardo-
loi, Gopinath ; primitive and tribal
population in, 569; representatives to
Constituent Assembly, 104; special
grants to, 654; special problems of,
586; special powers of Government,
401; special provisions for tribal
people, 752

Assam High Court, 496, 588
Assam Hill Districts, 583
Assam Legislative Assembly, 588, 589,
755, 764; reservation of seats for
trlbals, 449

Assam Tribal Areas, 139, 449, 544;

administration of, 139, 572
Asthika Sabha of Madras, 266
Athgarh, 537; merger with Orissa, 554
Athmalik, merger with Orissa, 554
Attlee, Clement, 18, 63, 78, 81, S2, 86,
87; pledge of complete seif-gcvern-
ment in India, 62; speech in House of
Commons regarding Cabinet Mission
to India, 64; statement regarding
transfer of power, 86-7
Attorney General for Canada Attor-
ney General for Ontario aocl Oihers,
Privy Councifs decision on, 595-6
Attorney General, in United Kingdom,
408, 410, 411; in United Stales of
America, 410; of India, 410; ques-
tions of membership of Council of
Ministers of, 410; question of retire-
ment of, 410-1; right to address
either House of Parliament, 427; to
appear on behalf of Union in any
court in India, 410

Auditor-General for India, 415; ap-
pointment by Secretary of State, 412;
change of designation to Complroller
and Auditor-General 415, Expert
Committee on provisions regarding,
414-5; functions of, 412; provisions
regarding, 415-7; provisions under
Government, of India Act (1935),
412-3; .recommendations in Constitu-
tional Adviser’s memorandom, 414
Auditor-General, Provincial, 3S9
Audit or-in-Chief, 405, 415
.Aundh State,, merger with Bombay,
554

INDEX

857

Australia, !,■. 2, 11, 126, 140, 142, 150,
260, 401, 439, 486, 560, 562, 596, 612,
683, , 704, 824; Commonwealth

: Grants Commission in,, 657
Anstralian Bread Case, 596
Australian Constitution, 260, 289, 296,
596 , 603, 609, 615, 619.,. 628, 705
Australian Parliament, power to enact
on every matter in relailon to de-
fence, 596

Axis Group, see Axis Powers
Axis Powers, 27, 46, 47, 53
Ayyangar, M. Ananthasavanam, 101,
189 , 196 , 197, 198, 200, 242, 268,
270 , 431 , 435, 621, 665, 674, 681,
720 , 734 , 736, 775, 786
Ayyangar, N. Gopalaswami, 97, 101,

107,

109,

no.

114,

124,

127,

166,

337,

343,

344,

367,

369,

372,

373,

398,

421,

422,

423,

424,

431,

433,

464,

486,

520,

521,

552,

553,

559,

560,

561,

599,

600,

601,

603,

604,

605,

610,

•611,

613,

641,

642,

643,

651,

652,

669,

711,

793,

794,

795,

796,

798,

799,

806,

807,

825,

826,

838,

841

Ayyar,

Alladi Krishnaswami

, 79,

102,

114,

125,

127,

129,

140,

151,

152,

153.

160,

175,

176,

180,

181,

184,

192,

193,

197,

198,

200,

205,

206,

208.,

211,

212,

213,

2 14,

215,

233,

237,

242,

251,

253,

259,

260,

285,

289,

296,'

297,

301,

303,

304,

305,

321,

322,

332,

337,

343,

362,

369,

380,

389,

395,

421,

438,

439,

448,

483,

486.

487,

493,

498,

499,

504,

559,

597,

598,

599,

600,

603,

605,

612,

617,

619,

621,

625,

626,

627,

629,

641,

642,

651,

663,

669,

672.

694,

699,

700,

702,

704.

, 705,

706,

806,

817,

819,

825,

836,

837,

838,

839

, 103,

Azad,

Abu!

'Kalam, 33,

41, 47, 48,

521, 624, 773, 11 A. 19% 797. 840;
accepts position outlined by Cripps,
37, 38; letter to Cripps expressing
Congress view-point on Cripps for-
niula, 39-40; Linlithgow’s meetings
with, 30

B* N. Rau Committee, 541-2
Backward and Tribal Areas, 746, 765
Backward Areas, 762
Backward Classes, 738, 746, 751, 759,
768, 770; Commission for, 756; reser- .
vatlons in State appointments for, 196,
737; special representation for, 738
Backward Classes Commission, 738,
763, 765

Baghat State, 555

Bahawaipur State, 99 ; agreement re.

Sutlej Valley Cana! Project with, 527
Baig. Mehboob Ali, 102, 223, 236, 294,.

295, 332, 340, 359, 375, 391, 434, 629,
Baigra, Motiram, 104

Baldwin, Stanley, 18, 29
Balipara Frontier Tract, 589
Balsan State, 555

Bajgior State,' merger with Bombay,

Baluchistan, 56, 99, 127, 133, 139, 559,
572, 573, 747, 751; geographical situa-
tion and political administration, '550;
see also British Baluchistan
Bamra State, merger with Orissa, 554
Banaras State, merger with United
Provinces, 555
Banaras University, 60S, 637
Bande Mataram, 743
Banerjee, Mrs. Purnima, 103, 131, 188,
196,241,247,274,276,277
Banganapalle State, merger with
Madras, 554
Banka Pahari State, 556
Bansda State, merger with Bombay, 555
Banswara State, 557
Baoni State, 556

Baramba State, merger with Orissa, 554
Baraundha State, 556
Bardoloi, Gopinath, 104, 289, 587, 635,
670, 677, 769

Baria State, merger with Bombay, 555
Barman, Upendranath, 102, 196, 204,
674, 675, 676

Baroda State, 41, 99, 133, 369, 526,
541, 601 ; B, L. Mitter’s suggestion
re. filling of seats in Constituent
Assembly allotted to, 526; merger
with Bombay, 555
Barwani State, 557
Bashahr State, 555

Bastar State, merger with Central
Provinces and Berar, 554
Basu-M atari, Dharani Dhar, 104
Baudh State, merger with Orissa. 554
Baurias, 768, 770

Bay of Bengal, operation of Japanese
warships in, 35

Beg, Mirza Mohammad Afzal, 105
Begar, 249, 250, 253, 255, 256; in
Madras, 256 ; prohibition of, 254
Belgium, 30

Bengal, 21, 22, 57, 68, 69, 70, 73,
87, 88, 89, 90, 91, 95, 96, 97, 99, 127,
408, 570, 573, 746, 747, 778, 794;
famine of 1943, 613; Jinnah on

partition of, 87-8, 89, 91; primitive
and tribal populations in, 569 : resig-
nation of League Ministry, 63; see
also West Bengal
Bengal Legislative Assembly, 752
Benn, Wedgwood, 19
Beri State, 556

Bevin, Ernest, promise of abolition of
India Ofiice and transfer of Indian
affairs to Dominion Office, 62
Bhagal State, 555
Bhagat, Dayal Das, 103
Bliagwan Din, 103
Bhagwat Prasad, 103
Bhaisaunda State, 556

858

FRAMING OF INDIA’S CONSTITUTION

Bliajji State, 555

BharatM, L. Krishnaswami, 102

Bharatpur State, 557

Bharatvarsha, 141, 142

Bhargava, Miikut Bihari Lai, 104, 560,

, 562, 565

Bhargava, Thakurdas, 103, 166, 189,
222, 22'5, 226, 230, 231, 236, 240, 242,
243, 277, 280, 281, 294, 295, 328, 331,
455, 510, 566, 681, 686, 704, 705, 706,
774, 775, 776, 787
Bhashyam, K., 159
Bhatkar, Lakshman Shrawan, 104
Bhatt, Govindbhai Daulatram, 105
Bhavnagar State, 556
Bhopal State, 101, 539, 545, 556, 565,
567, 568 ; member of the Constituent.
Assembly from, 106 ; Nawab of, 16,
519, 525

Bhor State, merger with Bombay, 554
Bhulabhai Desai-Liaqat Ali Plan, main
features of, 60

Bhumia Estates of Nimkhera, Jammia
and Raigarh, 557

Bihar, 21, 68, 88, 94, 96, 100, 137, 146,
147, 294, 401, 543, 544, 573, 576, 577.
578, 581, 657, 678, 684, 690, 691, 765,
773, 794; members of Constituent
Assembly from, 103-4 ; merger of
Indian States with, 555 ; primitive and
tribal populations in. 569 ; second
chamber for, 451, 457
Bihar Legislative Assembly, 623, 667
Bihat State, 556
Bija State, 555
Bijawar State, 556
Bijna State, 556

Bikaner State, 99, 520, 525, 526, 557;
agreement re. Sutlej Valley Canal
Project with, 527; Maharaja of, 7,
16, 525

Bikha State, 556

Bilaspur State, 101, 539, 545, 556, 567,
568

Bills, Abolition of Privy Council Juris-
diction Bill, 495; Appropriation Bills,
441 ; Commonwealth of Australia
Bill, 2 ; Commonwealth of India Bill
(1925), 8, 9, 172; Constitution of
India Bill (1895), 171 ; Government
of India Bill (1934), 7, 174 ; Home
Rule Bill, s-ee Constitution of India
Bill ; Indian Independence Biil
(1946), 527, 528-9 ; Money Bills,
427-8, 441, 820; Swaraj Bill (1895),
1 ; Zamindarl Abolition and Land
Reforms Bill, 297
Bill of Rights, 223, 745
Birkenhead, 12 ,

Birla,. G. D., 42
.Biyani, Brljla! Nandlal, 104
Bombay (City), 13, 17, 667
Bombay (State), 68, 88, 94, 96, 100,
101, 137,, 146, 280, 406, 408, 426, 467,
473, 543, 544, 573, 576, 578, 592, 656,
657, 667,..689, 691, 740, 742, 764,770,.

794 ; division into Gujarat and hiaha-
rashtra, .147, 407 ; Finance Minister
of, 672; Indian States merged ^with,
554-5 ; members of Constituent
Assembly from, 102, 105; power of
President to provide for special res-
ponsibilities for Governor of, 407 ;
reservation of seats for Indian

Christians, 758 ; resolution of Rulers
of Indian States re. negotiation with
Constituent Assembly, 521-2 ; second
chamber for, 451 ; Princely States in,
101; Premier of, see Kher, Bal
Gangadhar

Bombay High Court, 303, , 306, 498
Bombay Legislative Assembly, 752, 755;
reservation of seats for Indian

Christians, 449; reservation of seats

for Marathas, 742

Bombay Reorganization Act (19601,

147 ; amendment of article 37! of the
Constitution, 407

Bonai State, merger with Orissa, 554
Bose, Rajkrishna, 104
Bose, Subhash Chandra, 25
Borrowing, power of Centre regarding,
687-8 ; power of State Governments
regarding, 688

Boundary Commission, 89 ; to settle
boundaries of East Bengal and West
Punjab, 137
Brahma, R. N., 752

Brajeshwar Prasad, 103, 223, 224, 313,
394, 396, 456, 566, 581-2, 586, 629,
637, 674, 706, 730, 799, 802, 830
Brijraj Narain, 105
Britain, see Great Britain
British Baluchistan, 68, 88, 90, 95, 136,
558, 559, 572; becomes part of
Pakistan, 573; see also Baiuchistaii
British Cabinet, 39, 45, 88, 122, 376:

plan for political reforms in India, 34
British Cabinet Mission, see Cabinet
Mission

British Commonwealth, 10, 58, 64, 84,
90, 126, 129, 160 ; Conference on
Nationality and Citizenship, 150
British Constitution, 824
British Government, 9, 27, 29, 31, 33.
34, 37, 38, 39, 40, 49, 5L 59, 64, 66,
73, 77, 78, 86, 87, 88, 90, 92, 99.
110,412, 121, 122, 127, 131, 133, 135,
399, 419, 592, 716, 741, 744, 745 ;

announcement of June 3, 1947

regarding ' partition of India, 606;

. jurisdiction over Princely States, 513,
514; offer of political retorois to
India, 30-1; on India's constitutional
problems, 89, 90; on transfer of
power, 81-2 ; recognition of India's
right to independence, 38 ; Statement
of June 3, 382, 385; views on lapse of
paramouatcy over Indian States, 528-9
British Guiana, see Guyana
British High Commissioner in India,
proposed appointment of, 62

INDEX

859

British Nationality Act (1948), 107
British Nationality' and Status of Aliens
Act. (1914), 149

British North America Act (1867), 139
British Parliament, 1, 2, 8, 9, 10, 11,
12, 17, 18, 19, 20, 29, 64, 90, 92, 131,
168, 170, 171, 174, 334, 335, 386, 399,
512, 528, 572, 592; privileges and
immunities of members of House of
Commons, 438 ; proposed legislation
re. transfer of power, 90; see also
House of Commons; House of Lords
British War Cabinet, -41
Bundi State, 557
Burke, Edmund, 777
Burma, ^43, 44, 47, 50, 160, 163, 569,
572, 586 ; threat of Japanese invasion
to, 35

Business Committee, see Order of-
Business Committee

Butler Committee on Indian States,
13-4, 514-5 ; classification of Indian
States by, 511; idea of federal Union
for India, 593 ; on exercise of
paramountcy over Indian States,
514-5

Butler, Harcourt, Chairman of Indian
States Enquiry Committee, 13, 514

Cabinet Mission, 1, 64, 66, 67, 68, 70,
71, 72, 73, 77, 78, 93, 95, 96, 107,
110, 124, 175, 176, 518, 519, 525, 604,
745 ; B. N. Rau’s note on plan of,
82-3 ; conditional acceptance by
Muslim League of plan of, 71 ; dis-
cussion with leaders, 64 ; form of
Constitution recommended by, 67-9;
interpretation of statement re.
Unioifs power to raise llnaiices, 599 ;
limitations imposed on scope of
Centra! authority by plan of, 606-7;
limitations imposed on Constituent
Assembly by its statement on Indian
States, 534 ; memorandum to
Chancellor of Chamber of Princes on
paramountcy, 518; on distribution of
seats for Indian States in Constituent
Assembly, 521 ; on excluded areas,
572 ; on Indian States, 523, 534 ; on
minorities and tribal and excluded
areas, 68 ; on paramountcy over
Indian States, 68-9 ; cn question^ of
accession of Indian States to Union,
518; on representation to Constituent
Assembly, 93 ; on safeguards for
minorities, 468; on Union - of India,
595 ; plan of, 74, 76, 78, 81, 88,
92, 98, 107, 108, 110, 112, 119, 120,
125, 127, 131, 134, 135, 382, 3-84, 526,
597, 602, 605, 606, 651, 703,: . 745 ;
proposals of, 65-6, 750 ; proposal re.
Advisory Committee on Fundamental
Rights, Minorities and,- Tribal and
Excluded Areas, 93-4 ;. silent . on

Union’s power to raise finances, 596-
97; statement of 64, 69, 72, 80, 134,
471, 599, 609, 611, 745 ; suggestion re.
Indian States considered by Standing
Committee of Chamber of Princes,
519-20; views on Pakistan, and con-
stitutional reforms ' in India, 66-70
Cachar, district in Assam, 583
Calcutta, 26, 196, 667, 672; Governor-
General in Council at, 592 ; riots of
August (1946), 73

Calcutta High Court, 302, 303, 306,
496, 498, 714 ; jurisdiction over
Assam, 496

Cambay State, merger with Bombay, 555
Canada, 126, 140, 150, 326, 339, 365,
383, 401, 486, 487, 596, 612, 683, 824,
827

Canadian Act (1946), provisions re.
citizenship, 150

Canadian Constitution, 140, 616
Canadian Parliament, 596
Canberra, capital of Australia, 560,
565

Carson, Edward, 767
Census, to be held within three years of
commencement of Constitution, 456 ;
total Scheduled Caste population of
Assam in Census of 194L 774-5
Central Government, form during
British rule, 334-5

Central Legislative Assembly, see
Legislature, Central
Central Legislative Council, 2, 3
Central Provinces and Berar, 21, 68, 88,
94, 96, 100, 101, 137, 401, 543, 544,
573, 576, 578, 656, 672, 689, 690, 691,
765, 794 ; members of Constituent
Assembly from, 104, 105; merger of
States with, 533, 554, 663-4; Premier
of, see Shukla, Ravi Shankar; primi-
tive and tribal population in, 569;
States in, 101; see also Madhya
Pradesh

Centre-State Relations, administrative
relations, 641-9 ; apportionment of
proceeds of taxes and duties, 653,
663, 664 ; authorities set up under
Union laws for regulating or deve-
loping inter-State river or river-valley
not to be subject to taxation by
States re. electricity, 673 ; Centre’s
power to give directions to State,
642; Centre to contribute extra costs
to State in carrying out Union
directions, 647 ; Centre to direct
units to draw up schemes for welfare
of minorities, Scheduled Areas and
Scheduled Tribes and to exercise con-
trol over execution of such schemes,
763-4; certain specified business
carried on by States not eligible foi
exemption from Union taxation,
689-90, 692 comments on legislative
lists, 621-5; creation of services
common to Union and States, 719 ;

860

FRAMING OF INDIA’S CONSTITUTION

delimitatioa of legislative and
exe<^tive jarisdictioos between Fede-
ration and units in Government of
India Act (1935), 802; dismbution
of legislative powers, 595-640 ; distri-
bution of proceeds of export duties,
670-1; distribution of proceeds of
taxes on income and surcharge on
taxes and duties, 674-5; duty of Union
to protect States, 812; exemption
from sales tax on water and electricity
produced by inter-State river or
river-valley development authorities,
689; exemption of property and
income of a State from Union taxa-
tion, 692; exemption of Union pro-
perties from State taxation, 688-9 ;
exemption of Union properties from
taxation by local authorities, 693-4;
Federal Legislative List giving exhaus-
tive power to Centre re. certain duties
and taxes, 650 ; financial agreements
with States, 682; financial relations,
596-7, 649-97, 654-5, 664-5, 675-6 ;
financial relations between Centre and
Fart 111 States, 682 ; financial relations
contemplated in Draft Constitution,
665 ; foreign loans to be exclusively
Union subject, 688; general and speci-
fic grants to units, 653-4, 664 ; grants
for public purposes, 687 ; grants-in-aid
for welfare of Scheduled Tribes and
administrative development of tribal
areas, 653-4, 680-1; grants-in-aid to
States, 678-80, 684; immunity from
taxation of inter-State trade and
commerce, 695-6; immunity of Union
and State property in matter of taxa-
tion, 68?; immunity of State Govern-
ment from Union taxation, 671;
immunity of State Government
property from Union taxation, 689;
in case of difference of opinion
between Union and States, opinion
of Union to prevail, 671; in event of
repugnancy between a State law and
a Federal law, the latter to prevail,
615, 619; inconsistency between

Union laws and State laws, 619;
legislative lists, 639-40 ; FarliamenLs
powers during breakdown of consti-
tutional machinery in State, 812;
Parliament’s power to impose tax
other than stamp duties on transac-
tions in stock exchanges and futures
markets and on sale or purchase of
newspapers and on advertisements
therein, , 674 ; Parliament ’s power to
legislate for tvhole or any part of
India during emergency, S09 ; Parlia-
ment’s power to legislate on ■ any
matter in State List in national
interest, 618, '619 ; Parllamenfs power
to legislate on sharing of proceeds of
Union duties of excise other than those
on medicinal and .toilet preparations

with States, 677 ; Parliamenfs power
to legislate on State subjects during
emergency, 614 - 6 , 619 ; Parliamentary
Act on State ' subject can be amended
or repealed only by Act of Parlia-
ment, 619; power of borrowing by
State Governments, 671 ; power of
Centre over States during emergency,
810, 816 ; power of Centre re, distri-
bution of certain heads of revenue
during emergency, 809 ; power of
Centre to direct States to draw up and
execute schemes for welfare of
Scheduled Tribes, 779 ; power of
Centre to give directions to
States for protection of railways
within State, 648 ; power of Cen-
tre to issue directions to States
during emergency, 809, 822 ; power of
Centre to issue ■ directions during
financial emergency, 821 ; power of
States to impose taxes on water and
electricity consumed, distributed or
sold by inter-State river or river-
valley authorities, 692; Presidenfs
power to authorize expenditure from
Consolidated Fund of State during
emergency, 813 President’s power to
modify or terminate financial agree-
ment, 682 ; proposed power of
President to suspend or vary financial
provisions relating to distribution of
revenues, etc., in times of emergency,
661 ; Provincial Governments and
Central Ministries on immunity of
Union and State property in matters
of taxation, 688 ; Provincial legisla-
tive list giving exclusive jurisdiction
to units in respect of certain duties
and taxes, 650 ; Public Service Com-
mission, 725-6 ; recommendations of
Expert Committee on financial
matters, 658-60 ; recommendation of
Union Powers Committee re. assign-
ment or sharing of proceeds of taxes
on basis to be determined by Centre,
651; re-exaraination of provisions re.
legislative and executive powers con-
sequent on partition, 605 ; regarding
income-tax, 670; reservation oi
Money Bills passed by Slate Legisla-
tures for consideration of President
during emergency, 820 ; residuary
powers of legislation, 618 ; respective
powers of borrowing of Centre and
units, 655, 687 - 8 ; respociivc powers
of Central and State Governments
in respect of services, 714; restrictions
on power of Pariiament Co legislate
for Indian States, 618 ; scheme in
Draft Constitution, 62S4); special
grants to Assam, 654; Suites not to
impose sales tax on proceeds of
inter-State trade or export tnit of or
import into India, 688, 690*2, 092-3;
States’- power to impose taxes in

INDEX

861

respect of professions, trades, ■ callings
or employments, 681-2; States ' to
collect and appropriate proceeds of
Union stamp duties, and duties of
excise on medicinal and toilet pre-
parations, 673; suggestions from
Central Ministries, Provincial Assem-
blies and others re. financial provi-
sions, 656-7, 666-7, 669; suggestions of
Central .Ministries re. legislative power
of Centre, 623-5, 632, 633-5; siigges-
tio:iis of Provincial Governments re.
legislative lists, 633; suspension of
financial provisions during emergency,
816-7, trade, commerce .and inter-
course within India, , 701; under
Government of India Act (1919), 595;
under Government of India Act
(1935), 593-5; Union Constitution

Committee on duties and taxes, 651;
Union’s jurisdiction' over all matters
implied, inherent and resultant from
express powers, 605; Union to protect
units from external aggression and
internal commotion, 811, 814
Certiorari, writ of, 302, 310, 505
Chacko, P. T., 105, 694
Chaliha, Kuladhar, 104, 452, 465, 510,
586, 588,. 774
Chamba. State, 555

Chamber of Princes, 14-5, 20, 98, 108,
520, 526; Cabinet Mission’s memo-
randum on paramountcy, 518;
Chancellor of, 518, 520; Constituent
Assembly sets up committee to confer
with Negotiating Committee^ of,
521; meeting of its Negotiating
Committee with Negotiating Com-
mittee of Constituent Assembly,
522-5; Negotiating Committee of,
519-20, 522, 526, 536, 539; question
of distribution of seats among and
method of representation of Indian
States in Constituent Assembly,
524-5; suggestion of Cabinet Mission
re. Indian States considered by, 519-20
Chamberlain, Joseph, 1, 11
Chandernagore, French settlement, in
India, 164, 566
Chandigarh, 147
Clmndika Ram, 103
Chandrasekharayya, D. H., 346
Changbliakar State, merger with Cen-
tral Provinces and Berar, 554
Channiah, T., 104, 346
Charkhari State, 556
Charter Act (1833), 473, 592; Charter
Act (1853), 473

Chattopadhyay, Mlhir Lai, J02, 221, 222,
226, 278

Chaudhri, Mrs. Kamala, 103
Chelmsford, Viceroy of India, % 6 , 7 ,
516, 593

Chettiar, T. A. Ramalingam, 102, 265,
330, 622, 623

Chettiyar, M. A,. Muthia, 102 ■

Chetty, R. K. Shanniukham, 102
Chhatarpur State, 556
Chhota Udaipur State, merger with Bom-
bay, 555

Chhui Khadan State, merger with Cen-
tral Provinces and Berar, 554 '

Chiang Kai-shek, 44, 45, 49; letter of
Gandhi to, 44-6

Chief Commissioners’ Provinces, ' 68,
425, 4.26, 776, 825; position re. finan-
cial powers, 652, 653; to be direct
responsibility of Central Government
in financial matters, 662-3; see also
Ajmer-Merwara; Andaman and Nico-
bar Islands; British Baluchistan;
Coorg; Delhi; Goa; Himachal Pra-
desh; Manipur; Panth Piploda;
Pondicherry; Tripura; Union Terri-
tories; Vindhya Pradesh
Chief Election Commissioner, 466
China, 37, 44, 45, 46, 47, 51, 586
Chittagong Hill Tracts, 570
Christian Conference, 51
Christians, see Minorities
Choudhury, Rohini Kumar, 104, 166,
186, 309, 401, 586, 588, 679, 681,
824

Chuda State, 556
Chundrigar, I. L, 389
Churchill, Winston, 18, 27, 29, 31, 35,
38, 42, 43, 48, 49, 52, 62; cable of
Tej Bahadur Sapru re. end of Indian
political deadlock, 52-3; on Governor-
General’s powers under Government
of India Act (1935), 803; opposition
to India policy, 18
Churchill’s War Cabinet, 30, 34
Citizenship, Drafting Committee on
mode of acquiring, 158; for Indian
residents in Malaya, 163; for persons
originating in Pakistan, 163-4, 165,
166; historical background of the
concept, 149-50; of Commonwealth,
167-8; provisions regarding, 154, 164
Citizenship Act (1955), 168-9
Civil Disobedience Movement (1930-31)
launched by Gandhi, 46, 52, 676
Cochin State, 99, 133, 526, 541, 551;
Maharaja on the issue of his State’s
participation in Constituent Assembly*
526

Code of Civil Procedure, 584
Code of Criminal Procedure, 230, 23 i,
239, 240, 241, 242, 244, 306, 310, 368,
507, 509, 584

Commission, to demarcate Muslim
areas, 55

Committee of Rulers and Ministers, on
question of participation in Consti-
tuent Assembly, 525-6
Committee on Chief Commissioners’
Provinces, 115, 560-4, 566
Committee on Division of Functions,
(Montagu-Chelmsford Reforms), 724^
Committee on Functions of the Consti-
tuent Assembly, 1 14

862

FRAMING OF INDIANS CONSTITUTION

Committee on tribal areas and excluded
and partially excluded areas of
Assam, 758

Commonwealth, 1, 5, 18, 19, 37, 64,

68, 130, 150, 518

Commonwealth citizenship, note on,
167-8

Commonwealth Grants Commission, in
Australia, 657

Commonwealth Labour Conference, 15
Commonwealth of India Bill, see Bills
Communal Award (1932), 25, 742;
Calcutta resolution, 468; features of,
467 ; separate electorates for minori-
ties, 467

Communal representation, 61, 68;

abolition of reservation of seats,
470; Aga Khan's efforts regarding, 3;
Award of 1932, 467; fii'st adoption of,
466; Fundamental Rights Advisory
Committee’s recommendation to
abolish, 470; historical background,
466-7; Motilal Nehru Committee on,
13; Vailabhbhai Patel’s views on,
469

Communist Party of India, 97
Comptroller and Auditor -General, 405,
415, 416, 417, 440, 729, 789;
also Auditor-General of India
Conciliation Committee, see Sapru

Committee

Conference of Chairmen of Public Ser-
vice Commissions in India, sugges-
tions re. Public Service Commissions,
729-31

Conference of Chief Justices, 490, 500,
504, 508

Conference of Premiers and Finance

Ministers of Provinces and Indian

States, 633, 634, 635, 637, 639, 666,
669, 671, 672, 673, 688, 697, 715; on
situation arising out of breakdown
of constitutional machinery, 811-2
Conference of Presiding Officers of

Legislatures in India, proposal re.
separate Secretariat staff for Legisla-
tures, 438

Congress, see Indian National Congress
Congress High Command, see Indian
National Congress

Congress leaders, arrest of, 44, 46 ;
release of, 55

Congress Ministries, resignation of,
29

Congress Party, 22, 225, 786, 787, 835,
838, 839, 840; consideration of

MunsM-Ayyangar draft on language,
794; discussions on language issue,
791; electoral understanding with
Muslim League, 22; on language issue,
791-3; victory in elections of 1937, 21
Congress Working Committee, 12-3, 26,
27, 28, 33, 42, 55, 60, 78, 79, 85,
86, 87, 98, 120, 382; on communal
award, 468; reaction to Cabinet
Mission’s .plan, 72 ; ■ • resolution (of

July 1942), 45; resolution on State
language, 791; resolution regarding
war aims in regard to democracy
and imperialism and their applica-
tion to India, 27-8 ; Wardha resolu-
tion on constitutional reforms, 45-6

Connaught, Duke of, 7

Consolidated Fund, of India, 440, 441,
739; of States, President’s power to
authorize expenditure during emer-
gency from, 813.

Constituent Assembly, 1, 26, 27, 28, 37,
46, 63, 75, 76, 77, '78, 79, EO, 81, 82,
83, 84, 85, 86, 88, 89, 90, 91, 92, 93.
96, 97, 98, 99, '100, lOI, 104, 108,
109, 110, 111, 112, 113, 114, 115, !I6,

117, 118, 119, 120, 121, 122, 124, 125,

126, 127, 128, 130, 131, 132, 133, 134,

137, 139, 140, 141, 144, 145, 146, 148,

149, 150, 151, 152, 153, 154, 156, 162,

165, 167, 175, 177, 178, 179, 181, 189,

191, 196, 198, 199, 203, 206, 207, 209,

210, 217, 218, 220, 221, 223, 226, 227,

236, 238, 239, 245, 246, 253, 254, 262,

263, 264, 266, 268, 270, 274, 275, 277,

278, 285, 286, 287, 289, 291, 294, 296,

298, 305, 306, 308, 311, 313, 314, 320,

326, 329, 330, 331, 337, 346, 347, 351,

364, 366, 379, 380, 385, 389, 391, 392,

394, 396, 397, 399, 400, 401, 402, 403,

410, 414, 420, 427, 432, 433, 437, 439,

440, 442, 449, 456, 460, 471, 486, 487,

491, 492, 494, 495, 496, 497, 498, 499,

501, 504, 507, 510, 519, 520, 521, 522,

523, 525, 526, 531, 535, 538, 539, 541,

542, 543, 546, 548, 551, 559, 560, 565,

572, 573, 575, 586, 589, 595, 597, 599,

605, 609, 613, 617, 620, 621, 622, 627,

628, 629, 635, 636, 638, 639, 642, 647,

652, 667, 668, 669, 674, 676, 677, 678,

680, 682, 684, 687, 688, 694, 699, 700.

701, 702, 703, 705, 706, 715, 716, 717,

718, 720, 721, 726, 727, 730, 73L 733,

734, 737, 738, 740, 744, 745, 746, 747,

■759, 760, 761, 763, 764, 765, 767, 770,

771, 772, 773, 774, 776, 777, 778, 779,

781, 783, 784, 788, 789, 791, 794, 795,

798, 799, 800, 802, 803, 805, 806. 807,

809, 812, 815, 818, 819, 821, 823. 826,

828, 829, 830, 832, 835, 836, 837, 838,

839, 841; acceptance of principle of
parliamentary executive responsible to
Lower House of Legislature, 340;
Advisory Committee on directive
principles of State policy, 114, 115:
allotment of seats in, 94-106;
B. N. Rau. on, 76-7; B. N. Rau on
procedure in, 83-4; Cabinet Mission’s
plan for representation to, 93; com-
mittees of, 107-10, 112, 115, 116;
aiso Expert Committee on Financial
Provisions; Fundamental Rights Advi-
sory Committee; Order of Business
Committee; Provincial ''■ Constitution
Committee; Special Committee; Union
Constitution. .Committee; Union

INDEX

863

Powers Committee; Committee of
Eulers and Ministers on participation
in, 525-6; Committee on the Functions
of the Constituent Assembly, 114;
Committee on Rules of Proce-
dure, 108-9; Congress demand for,
27-8; Congress resolution to join,

72 ; consideration of Munshi-Ayyan-
gar^ draft, 794; convening of, 74;
decision to set, up a committee regard-
ing provincial constitution, 85-6;
decision to summon, 74; elections
to, 72, 74; Experts’ Committee of
Congress ^ to evolve procedure, 107,
120 ; filling of ^ seats allotted to
Baroda and Cochin in, 526; fresh elec-
tions after merger of States, 100-1;
fresh elections from East Punjab and
West Bengal, 99; first meeting (on
December 9, 1946, in Council House,
New Delhi), 76, 108; full opportunity
given to all members to participate in.
debates, 838; Fundamental Rights
Sub-Committee, 525; historical back-
ground of decision to set up, 334;
language issue, 840; Legislative
Assembiics to .be electing bodies, 93;
limit a lion imposed by Cabinet
IVlission's statement on Indian States,
534 ; meeting of its Negotiating Com-
miitee with States Negotiating Com-
mittee, 522-5; membership of, 93-105;
Negotiating Committee, 145, 523,
536, 539; Negotiating Com-

mittee’s report re. participation of
Indian States, 526 ; Objectives Resolu-
tion moved by Jawahaiial Nehru,
79-80 ; on Advocates-Generai, 409-11 ;
on appointment of Governors, 394-6 ;
on Auditor-General, 415-7; on Chief
Commissioners’ Provinces, 565-6; on
citizenship, 150-1, 164-5; on condi-
tions of office of President, 353 ;
on constitutional remedies, 307-11; on
Council of Ministers, 372-80 ; , on

cultural and educational rights of
minorities, 273-81; on directive
principles of State Policy, 326-33 ;
on Election Commission, 463-6; on
election of President, 345-9 ; on eligi-
bility of President for re-election,
350 ; on equality before law, 182 ;
on equality of employment opportu-
nity, 196-201 ; on executive authority,
363-7 ; on finance and borrowing
powers, 652 ; on fundamental rights,
177-9 ; on Governors and State
executives, 388-98 ; on High Courts,
498-505 ; on impeachment of Presi-
dent, 354-5; on Indian States, 533.-4;
on joint electorates, 468; on legisla-
tion to give effect to fundamental
rights, 316-8; on legislative lists, 614,.
639-40; on Legislative Councils, .451;
on legislative relations, 630-40; on
minorfties, 780; on official language.

442, 794-800; on Ordinances by
President and Governors, 475-6; on
parliamentary system of government,
423; on power of pardon, 369-71; on
privileges of members, 439; on prohi-
bition of discrimination, 186, 190-1;
on protection of life and personal
liberty and protection against arrest
and detention, 233-5 ; on protection
in respect of conviction for offences,
229-31; on protection of life and
personal liberty and protection against
arrest and detention, 235-49 ; on
qualifications of President, 350-2; on
right against exploitation, 257 ; on
right to freedom, 215-26 ; on services,
718-23; on subordinate judiciary,
509-10; on Supreme Court, 483-95;
on term of office of President,
349 ; on time of holding election to
fill vacancy in office of President, 356;
on trade, commerce and intercourse,
701-3 ; on Union Legislature, 431-43 ;
on untouchability, 204-5 ; on Vice-
President of India, 358-9 ; Order of
Business Committee, 109-1 i ; political
implications of abstention of Muslim
League from, 77-9; President of,
see Rajendra Prasad; proposals
regarding Sikhs adopted at a meeting
of Sikh members of East Punjab
Assembly and of, 770 ; question of
distribution of seats among and
method of representation of Indian
States, 518-9, 524-6; report of Com-
mittee on Chief Commissioners’
Provinces, 560-2 ; resolution for
setting up of committee to report on
principles of Union Constitution, 85 ;
Rules of Procedure of, 421, 786 ;
rules of procedure regarding language
to be used, 783-4, 786 ; Sapru Com-
mittee’s recommendation regarding,
58 ; scheme of Advisory Committee
on Fundamental Rights, Minorities,
Tribal and Excluded and Partially
Excluded Areas, 745, 746 ; sets up
committee to confer with the Nego-
tiating Committee of Chamber of
Princes and other representatives of
Indian States, 521 ; sets up committee
to consider and report on constitu-
tional changes and administrative
reforms in Chief Commissioners’
Provinces, 560 ; setting up of diffe-
rent committees, 109H2; Special
Committee on composition of Legis-
lative Assemblies, 454; Special
Committee on problem of centrally
administered areas, 564; si^cial sub-
committee to examine implications of
partition of India, 127; Staff and
Finance Committee, 107; stand taken
by Muslim League regarding, 81;
statement by Vallabhbhai Patel re.
progress of integration of Indian

864

FRAMING OF INDIA’S CONSTITUTION

States in, 551-2 ; Steering Committee,
107, 109^, 787; Sab-Committee ^ on
. North-East Frontier (Assam) • Tribal
and Excinded Areas, 139; table of
.representation, 94-5; to choose either
ttnitary 'type of constitution or a
federation, 606-7; to frame Constitu-
tion for all Indian States, 542; to set
up Advisory Committee for safeguards
for minorities, 468, 747

Constituent Assembly for States, in
Saurashtra, Travancore-Cochin and
Mysore, 54!

Constituent Assembly for Union of
States, 533

Constitution Amendment Acts, First
Amendment (1951), 192, 227, 228,

301 , 444, 458, 706-7; Second Amend-
ment (1952), 444; Third Amendment
(1954), 640; Fourth Amendment

(1955), 300, 301, 707 ; Fifth Amend-
ment (1955), 148; Sixth Amendment
(1956), 640, 697; Seventh Amendment
(1956), 146-7, 148, 201, 380, 406-7,
443, 444, 457, 458, 496, 505, 506, 554,
568, 640, 641, 649, 698, 707, 800;
Eighth Amendment (1959), 780; Ninth
Amendment (1960), 147 ; Tenth

Amendment (1961), 147 ; Eleventh
Amendment (1961), mode of election
of Vice-President prescribed in, 381 :
Twelfth Amendment (1962), 147;

Thirteenth Amendment (1962), 590 ;

Fourteenth Amendment (1962), 147,

444 ; Fifteenth Amendment (1963),
505, 506, 698, 723, 740; Sixteenth
Amendment (1963), 227-8, 444 ;

Seventeenth Amendment (1964), 301;
Eighteenth Amendment (1966), 148 ;
Nineteenth Amendment (1966), 472 ;
Twenty-first Amendment (1967), 801
Constitution of India {see also Draft
Constitution), 118, 127, 131, 132, 168,
170, 172, 175, 182, 192, 201, 295, 320,
321, 326, 328, 330, 334, 337, 343, 347,
352, 353, 371, 380, 386, 544, 566;
Act not to be invalid after receiving
assent on ground that recommenda-
tion required by Constitution was not
given, 620 ; Allahabad resolution,
41 ; all-parties conference at Delhi
(1928), 12-3; before independence,

418-9; Bombay resolution of all-
parties conference, 13 ; census to be
held within three years of commence-
ment of, 456; character of, 841;
Concurrent List, 220, 296, 535, 553,
603, 728 ; Constitutional Adviser’s
note on Cabinet Mission’s plan, 82-4;
Council of Ministers, 371-80 ; deletion
of words “Rajpramukh” and “Upraj-
pramukh”, 380 ; demand for inde-
pendence, 55 ; discretionary powers
of Governors, 400 ; directive princi-
ples of State policy, 319-33 ; drawn
up by Constitutional Adviser,

134-5; -emergency provisions, 218 ;
executive power of States under, 398 ;
Experts’ Committee set up by Con-
gress to place material before Consti-
tuent Assembly, 107 ; Experts' Com-
mittee’s recommendations, 107-8 ;
First Schedule, 380, 563, 567, 568;
framing of, 54 ; Fundamental Rights
Advisory Committee's recommeinla-
tions re. procedure for amendment of,
827; general features of, 835-42;
Group Constitution, 77 ; Hindi version
to be of equal authority with English
version, 787 ; historical background
of provisions re. vesting of executive
power, 359-60, 362-3, 365-6; history
of its ' evolution and development,
335-8, 835 ; Inclusion of Sliidhi in
Eighth Schedule, 801 ; Jinnah’s oppo-
sition to Lahore resolution, 56; Lahore
resolution, 15; Madras resolution, 3,
12; meeting of National Convention at
Kanpur, 8 ; memorandum on princi-
ples of Union Constitution by
Gopalaswami Ayyangar and A Uadi
Krishnaswami Ayyar, 421-2 ; memo-
randum on Provincial Constitution by
Constitutional Adviser, 382-5 ;
methods of amending, 832-3 ; Muslim
League’s resolution on, 32-3; , new,
37, 63 ; Ninth Schedule to, 301 ; oath
of allegiance to, 444 ; power of
pardon, 367-71, 398;,pow.er of P.resl-
dent for removal during transitional
pe,riod of difficulties In, 827 ; power
of President under articles 391 and
392 to - make changes in First and
Fourth Schedules, 546 ; power of
Union Government to make laws re.
■subjects in Concurrent List, 39S;
Preamble, 127, 128, 129, 130, 131,

132 ; President and Union Executive,
334-80; procedure for amendmeut of,
824-5, 827-32; procedure for amend-
ment of legislative lists, 828; proce-
dure .for election of President, 343-9;
proposed composition of Council of
State to advise President, 338-9; pro-
posed electoral college for election of
President, 344-5 ; proposed provisions
enabling units to cede wider powers
to Centre, 603, 609; provisions re,
other States not to apply to Jammu
and Kashmir, 552-3; provision ic. ten-
year period for reservation of seats
.for minorities, 829; Rajagopalachari’s
formula, 55 : ratification of amend-
ments to, 829-31; right to vote not
to be included in chapter dealing with
fundamental rights, 462 ; Second
Schedule, 402, 620-1, 703; services,
718-23 ; special procedure for amend-
ment' of, 828; States and Union
territories, 380-1 ; sub-committee for
procedure on ratification of amend-
ments to, 826; suggestion that it

INDEX

865 '^

should be based on, village republics,
837; suggestions re. mcorporation , of
particular doctrines or cliches, 837 ;
temporary and „ transitional provi-
sions, 246 ; Union List, 553, 603, 609 ;
vesting of , executive power, 359-67

Constitution of 1935, see Government of
India Act (1935) ,

Constitutional Adviser, see Rau, B. N.

Constitutional .Advisory Committee .of
Indian States, 522

Cooch Behar, ^01, 539, 545, 546, 567 ;
members , of Constituent Assembly
from, 106; me,rger with West Bengal,
533, 546, 555, 567

Coorg, 88, 96, 99, 100, 137, 139, 425,
558, 559, 560, 561, 562, 563, 564, 565,
566, 567, 568 ; Legislative .Council in,
.558, 559 ; ' member of Constituent
Assembly from, 104

Coorg Legislative Council, 95

Coorgis, see Kodagus

Council of Ministers, 372-80, 385;
Fundamental Rights Advisory Com-
mittee on, 373; in States, 402-3; Mino-
rities Sub-Committee on, 373; Union
Constitution Committee on, 372-3; see
also Ministers

Council of State, proposed set-up to
advise President, 338-9, 357; propos-
ed powers regarding elections to
Legislatures, 446

Council of States, 358, 383, 384, 392,
418, 428, 463, 485, 492, 497, 616,
619; . functional panels for, 424-5;
rejection by Drafting Committee of
idea of a pane! on lines of Irish
Constitution, 450-1; representation of
States in, 422-3; resignation of
Chairman to be addressed to Presi-
dent, 349; Vice-President of India to
be Chairman of, 359, 427; see also
Parliament of India

Craddock, Reginald, 21
Cripps, Stafford, 34, 35, 38, 39, 41, 42,
45, 64, 84, 94, 517; Azad's letter to,
39, 40; broadcast blaming Congress
leaders for breakdown of talks, 40;
Failure of his mission, 37, 41, 43,
518; formula on defence, 39; his

reasons for breakdown of talks .re.
constitutional reforms, 40; leaves for
London, 40; mission of, 34, 41, 43,
62. 517; offer for solution of political
problems, 30, 62; on protection to
minorities, 745; on question of acces-
sion of Indian States to Indian Fede-
ration, 517-8; press conference on
Brilish Governments intention re.
transfer of power, 37; proposed
formula of, 39; request to Tej
Bahadur Sapru, Rajagopalachari and
B. N. Rau for formula on politi-'
cal settlement, 38; terms of declara-
tion made by, 36-7

Crown Representative in India, 133,514-6

Dadra and Nagar Haveli, 147, 442,
568

Daman, 147, 568

Damodar Valley Corporation, 416, 673
Dandekar, N., 540

Danta State, merger with Bombay, 555
Darkoti State, 555

Das, B., 104, 255, 294, 326, 415, 416,
652, 668, 675, 677, 681, 706
Das, Basanta Kumar, 102
Das, Biswanath, 109, 582, 679
Das, C. R., 8

Das, Monomohan, 102, 205

Das, Omeo Kumar, 652

Das, Santanu Kumar, 104, 205

Das, Sarangadhar, 105

Daspalia State, merger with Orissa, 554

Datia State, 556

Declaration by Commonwealth coun-
tries about India’s membership of
Commonwealth, 130

Declaration (of August 20, 1917), 5,
592

Declaration of Fundamental Rights, by
Indian National Congress, 320
Declaration of the Rights of Man
(1793), 319

Defence- Coordination Department, 39
Defence of India Rules, 242
Delhi, 33, 49, 88, 95, 96, 99, 100, 137,
139, 147, 171, 425, 558, 560, 561, 563,
564, 565, 567, 568; Drafting Com-
mittee’s views on proposed constitu-
tional set-up of, 562; influx of
refugees from Pakistan into, 556;
members of Constituent Assembly
from, 104; proposed Bill for, 566;
reasons for responsible government
for, 565, 566; separated from Punjab,
558

Delhi University, 608, 637
Deo, Krishna Chandra Gajapati Nara-
yana. Raja of Parlakimedi, 104
Deo, Shankarrao, 102, 521, 554-5
Depressed Classes, 741, 746
Depressed Classes Association, 750
Depressed Classes League, 97
Deputy Governor, 384, 389, 392-3, 396
Deputy Prime Minister, see Patel.
Valiabhbhai

Desai, Bhulabhai, 53, 60
Desai, Gopaldas A., 105
Desai, Kanayalal Nanabhai, 102
Desai, Khandubhal Kasanji, 102
Deshmukh, Panjabrao Shamrao, 104,
165, 166, 186, 216, 241, 394, 438,
637, 704, 737, 813, 830
D’Souza, Rev. Jerome, 101
D’Souza, Joseph Alban, 102 ' '

De Valera, E., 428, 430;; B. N. Rau’s
discussion with, 429; on amendment
of Constitution, 827

Devadasi system, 254, 255; in Madras,
255 ■

Devaswom Fund, ' provision . for pay-
ment to Travancore-Gochin, 548' .

866

FRAMING OF INDIA'S CONSTITUTION

Devaswoms, 548
Dewas State (Junior), 557
Dewas State , (Senior), 557
Dbami State, 555
Dhar State, 557
Dharam „ Dass, , A.,. 103
Dharam Prakasb, 103
Dharampur State, merger with Bombay,
555'

D harmadhikar i . Shankar T ryambak ,

104

Dhenkanal State, merger with Orissa,
554

Dholpur State, 557

Dhraiigadhra State, 556

Dhroi State, 556

Dhuiekar, R. V., 103, 126, 783

Dhurwai State, 556

Dicey, A, .V,, 170

Directive Principles of State Policy,
177, 226, 276, 279, 287, 329-30, 331,
509, 793; consideration and adoption
by the Constituent Assembly of
articles relating to, 326-33; incorpo-
ration in Constitution, 332; Minori-
ties Sub-Committee on, 325-6
District Councils for tribal districts,
449, 583-4, 585, 586
Dill, 147, 568

Diwakar, R. R., 102, 196, 204, 276, 277
Dominion Status, for India, 10, 18, 19,
20, 29, 30, 32, 33, 34, 59, 84, 90,
744; of “Statute of Westminster
variety”, 30-31

Draft Constitution, 115, 116, 117, 118,
128, 129, 138, 139, 140, 141, 145, 146,
160, 162, 163, 164, 178, 182, 187 188,
191, 195, 196, 203, 204, 207, 210,

217, 218, 219, 220, 221, 222, 229, 230,
235, 236, 246, 254, 264, 265, 275,

286, 296, 307, 312, 316, 326, 328,
329, 331, 340, 341, 342, 346, 347,

348, 349, 350, 356, 358, 361, 363,

367, 370, 373, 391, 393, 394, 396, 400,
401, 402, 404, 409, 414, 425, 426,

427, 429, 430, 433, 436. 437, 439,

440, 449, 450, 477, 479, 487, 488,

489, 490, 493, 494, 495, 498, 501,

503, 504, 535, 536, 537, 539, 542,

543, 547, 548, 562, 564, 575, 576,

578, 580, 581, 586, 587, 588, 589,

614, 615, 617, 618, 619, 620, 624,

625, 626, 627, 628, 629, 635, 636,

642, 643, 644, 645, 647, 652, 656,

660, 661, 663, 665, 668, 671, 673,

675, 682, 686, 687, 696, 701, 702,

706, 713, 714, 718, 727, 728, 733,

735, 736, 739, 761, 763, 765, 770, 774,
777, 779, 786, 787, 788. 793, 799,

808, 809, 810, 811, 815, 822, 827,

829, 831, 837, 838

Drafting • Committee, 97, ■ 114, 115, 116,
, 118, 128-9, 139, ■ 140. 143, 145-6,

150, 154, 157, 158, I59, 161, 162
■. ..164, T78, , 181, 187, 188, 189,198,

■200, 20.1,. 204, 205, 208, 209, 210,

217, 218, 220, 224, 229, 231, 235,

236, 238, 246, 247, 248,. 254, 257,

264, 265-6, 270, '277, 280, 281, 287,
288-9, 290, 298, 301, 307, 308, 312,
313, M4, 316, 317, 328, 331, 340, 343,
347, 350, 353, 354, 364, 365, 366,

394, 395, 396, 398, 399, 400, 401,

370, 374, 376, 378, 391, 392, 393,

402, 404, 405, 410, 411, 42S, 429,

431, 432, 434, 436, 437, 438, 440,

442, 452, 453, 454, 470, 477, 478,
479, 487, 490, 491, 493, 499, 500,

501, 503, 504, 505, 508, 509, 535.

536, 537, 538, 539, 542, 543, 565,

566, 579, 580; 586, 616, 617, 619,

620, 621, 622, 625, 626, 628, 632,

.633, 635, 639, 642, 644, 645, 647,

661, 662, 663. 666, 669, 670, 673,

674, 676, 677, 679, 680, 682, 686,

688, 691, 695, 701, 702, 70.3, 706,

712, 713, 714, 717, 718, 720, 728,

730, 731, 732, 734, 735, 736, 738, 739.
763, 764, 765, 772, 774, 778, 779,

780, 786, 787, 792, 793, 794, 799,

808, 811, 812, 816, 817, 818, 819,

820, 822, 823, 827, 828, 829., 832, 837,
838, 839; Chairman of, see Ambedkar,
B. R.; on abolition of titles, 207^8;
on Auditor-General and Auditor-in-
Chief, 415; on Chief Commissioners’
P,rovinces, 562-5; on citizenship., 158;
on desirability of permitting a multi-
plicity of audit authorities, 417; on
Election Commission, 464; on India, n
States, 563-4; on joint electorates,
469-70; on Money Bills in Slate
Legislatures, 450; on proposed cons-
titutional set-up of Delhi, 562; on
second chambers in States, 451; on
State Legislatu.res, 450, 451; recom-
mendation re. backward and exclud-
ed areas, 575-6; rejects idea of panel
for nominations to Council of Slates,
451; renumbering of Parts in First
Schedule by, 546; terms of reference,

' 114-5; to prepare Draft Constitution,
115, 116

Dublin, 327

Dujana State, merger with East 'Punjab,
554

Dungarpur State, 557

Durgabai, Mrs. 'G., 101, '189, '255, 266,
267, 436, 621, 665,'. 734, 736 '

Dutch East Indies, 47

Duties and taxes, 699, 700, 702, 705;
abolition of salt duty, ^653, 663, 670,
676-7; certain specified business
carried on by States not eiigiMe for
exemption from Union taxation,
689-90, 692; distribution of proceeds
of export duties, 670-1; disidbuticn of
p.roceeds of taxes on income and sur-
charge on tax and duties, 674-5;
estate duty, 817; exclusive jurisdiction
of Provinces over certain diifies and
taxes, 650; exclusive power of llnian

INDEX

867

with respect to certain, duties and
taxes, 650; exemption from sales tax
on water and electricity produced by
Inter-State river or river valley deve-
lopment authorities, 689; exemption
of property and income of a State
from Union taxation, 688-9, 692;
exemption of Union properties from
taxation by local authorities, 693-4;
immunity from taxation of Inter-
State trade and commerce, 695-6;
immunity of Union and State pro-
perty ill matter of taxation, 688;
income-tax, 817; levied and collected
and utilized by Centre, 650, 652-3,

663; levied and collected by Centre
but tO' be assigned to States, 650, 653,
663; levied and collected by Centre
but Parliament to decide by law
whether whole or any part of proceeds
should be distributed to Provinces,
650; levied and collected by Centre,
to be shared with States, 650,
663; miscellaneous financial provi-
sions, 654-5, 664-6; on professions,
trades, callings and employments, 654;
personal income of Ruler of an
Indian State liable to, 655; power of
Parliament to impose tax other than
stamp duties on transactions in stock
exchanges and futures markets and
on sale or purchase of newspapers
and on advertisements therein, 674;
power of Parliament to legislate on
the sharing with States of proceeds
oi Union duties of excise other than
those on medicinal and toilet prepa-
rations, 677; power of States to impose
taxes on water and electricity
consumed, distributed or sold by
inter-state river or ^ river valley
authorities, 692; Provincial Govern-
ments and Central Ministries on im-
munity of Union and State property
in matters of taxation, 688; provisions
regarding sharing between Centre
and units, 653; recommendafions of
the Expert Committee on Financial
Provisions regarding, 658-60, 660-1;
recommendation of Union Powers
Committee regarding assignment or
sharing of proceeds of taxes on a
basis "to be determined by Centre,
651 ; report of Union Constitution
Committee on, 651: restrictions on
pom^er of States to levy taxes on sale
or purchase of goods, 688; sales tax,
672-3; sales tax to be exclusive right
of States, 672; saving provisions
regarding existing taxes, 654, 664;
stamp duties, 817; States not to
impose sales tax on proceeds, of inter-
state trade or export out of or import
into India, 690-3, 697; States'

power re. taxes in respect of, profes-
sions, trades, callings or employments.

681-2; ^ States to collect and
appropriate proceeds of Union stamp
duties and duties of excise on medi-
cinal and toilet preparations, 673; suc-
cession duty, 817; surcharges on taxes
to be utilized by Centre, 653, 663;
suspension of financial provisions
during emergency, 809, 816-7; termi-
nal taxes, 673-4; Union excise duties,
817

Dutt, S., 157, 161, 163

Dwivedi, Mannulalji, 106

East Bengal, 90,91, 127, 136, 166,

768; see also East Pakistan
East Pakistan, 166

East Punjab, 99, 100, 137, 147, 455,

543, 544, 561, 566, 576, 578, 656, 660,
688, 689, 755, 760, 766, 767, 768, 769,
770, 794; fresh elections to Consti-
tuent Assembly, 99; Members of
Constituent Assembly from, 103;
question of. additional seats for Sikhs
in legislature of, 770; second chamber
for, 451; see also Punjab
East Punjab High Court, 567
East Punjab Legislative Assembly, 755,
768; proposals re. Sikhs adopted at
a meeting of Sikh members of Cons-
tituent Assembly and Sikh members
of, 770

Egypt, 27, 163

Election Commission, 405, 409, 464,

465, 466, 609; Ambedkar on, 464-5;
appointment to be regulated by
Union Law, 460-1; B. N. Ran on,
464; deletion of function of appoint-
ing election tribunals, 472; Drafting
Committee on, 464; Fundamental
Rights Committee on, 463; Funda-
mental Rights Sub-Committee on,
460-1; Minorities Sub -Committee on,
461; proposals considered by Cons-
tituent Assembly, 463-6; to superin-
tend, direct and control all elections
to Parliament and State Legislatures,
459-66; Union Constitution Com-
mittee on, 463; Union Powers Com-
mittee on, 463
Election tribunal, 436, 472
Emergency, 822; financial, 820, 822;

financial powers of Centre during, 809;
financial provisions during, 817;
Governors to report to President
in case of, 804, 807; historical back-
ground of emergency previsions,
802-3; in Government of India Acts
(of 1909, 1919 and 1935), 802;

issue before Constituent Assembly,
802; laying of proclamation of
emergency before Parliament, 808;
limitation on right to freedom during,
212; Parliament to approve of pro-
clamation of, 815; Parliament's power

868

FRAMING OF INDIA’S CONSTITUTION

f.o delegate legislative authority
diirkg, 815; powers of Centre during,
8i0-l; powers of Centre over States
during, 809, 812, S16, 822; power of
Centre, to suspend financial provi-
sions during, 810, 811; powers of
Governors of States for, 804; powers
of Parliament during, 809, 810, 813;
power of President to suspend right
to legal remedies for fundamental
rights during, 810; President’s powers
for, 804, 805, 806, 807, 808, 809,

812-3; President’s power to authorize
expenditure from Consolidated Fund
of State during emergency, 813; pro-
clamation of, 806, 807, 808, 809, 810,
811, 813, 816; proclamation to be
laid before and approved of by
Parliament, 810; Proclamation when
to be made, 810, 815; proposed
, powers of President ^ to suspend or
vary financial provisions relating to
distribution of revenues, etc., in
times of, 661; reservation of Money
Bills passed by State Legislatures for
consideration of President during,
820; steps to be taken by Union
during financial emergency, 821;
suggested provisions regarding emer-
gency powers, 807; supersession of
' State Legislatures during, 810; sus-
pension of Constitution during, 806;
suspension of financial provisions
during, 816-7; suspension of funda-
mental rights during, 818, 819-20:
suspension of right to constitutional
remedies for enforcement of funda-
mental rights during, 305, 307, 308,
309, 310, 810; under Government of
India Act, 1935 on breakdown of
constitutional machinery, 803; Union’s
power to issue financial directions to
States during, 821; views of Ministry
of Finance on financial emergency.
820-1

England, 482, 497, 499, see also Great
Britain

English Constitution, 341
Europe, 26, 27, 32. 254, 273
Excluded and partially excluded areas,
747,765

Executive Council, Central, 30, 33, 34,
38, 39, 45, 62, 63, 71, 74, 98, 473;
addition of Indian members to, 34;
Muslim League’s attitude re. 33;
proposal for enlargement of,- 33;
proposal for formation of an interim
' body. 72; reaction of Congress and
' Muslim League on announcement of
■"list of members - of, 71-2
Executive Councils of Governors ,of
■Madras and Bombay, 473
Expert, Committee on financial provi-
sions, 115, 440, 620, 652, 66!,' 662,
■663, '664, . 6-65, '6-66, ■ -6-67, ■ 674, 675, 679;
"'-■■'a-ppointment^ of,- 656; memorandu-m of

the Ministry of Finance to, 657-8;
on Auditor-General, 414-5; on
borrowing powers, 661; on grants-ln-
aid and subventions, 660; on position
of - Indian States in new financial
system, 661; on taxation of trading
operations of units, 660-1; recom-
mendation re. distribution of certain
heads of revenue during emergency,
809; recommendations re. financial
provisions, 658-60; suggests provision
authorizing President to suspend or
vary financial provisions relating to
distribution of revenues, etc. in times
of emergency, 661; terms of reference,
656

Experts Committee (of Indian National
Congress) to evolve procedure to be
followed by Constituent Assembly,
101, 107, 120

Extra-Provincial Jurisdiction Act
(1947), 532, 544, 545, 546

Faridkot State, 557

Fazlui Huq, A. K. M., 21

Federal Court, 75, 77, 78, 79, 116, 238,
483, 484, 485, 487, 490, 495, 496, 714,
753, 754; appeal to lie to Privy
Council from, 483; British Govern-
ment’s administrative control over,
482-3; jurisdiction and p-owers, 480-2;
proposal in White Pa-per regarding,

480- 1; qualifications for judges,
482-3; scheme for, 480; under Gov-
ernment of India Act (1935),

481- 2

Federal Legislature, 19, 20; see also
Legislature, Central; Parliament of
India

Federal Parliament, see Parliament of
India

Federal ^ Structure Committee, 17

Federation of India, historical b-ack-
ground, 592-5

Federation of Indian Chambers of
Commerce, 51

Fiji Islands, 163

Finance and borrowing powers, Union
Constitution Committee on,

652

Finance Act, 687

Finance Commission, 550, 657, €60,
662, 666, 668, 670, 675, 676, 679, 684,
685, 686, 687, 705: appointment of,
664; functions of, 664, 683-7; powers
of President vis-a-vis Parliament
regarding, 683; President to consult
on ^ certain issues, 685-7; recommen-
dations to be laid before Parliament,
664

Finance Ministers" Conference (1948),
69!, ■-

Fo-reign exchange,- to be Included in
Federal List, 609'

INDEX

869 ;

Foreign Jurisdiction Order in Council
0902), 513

Fox, Charles James, 18
France, 6, 27, 30, 42
Franchise and elections, 459-72; adult
suffrage, 835, 836; Drafting Com-
mittee on joint^ electorate, 469-70;
first general elections after indepen-
dence, 835; general elections (1937),
803; joint electorate, 466-70, 760, 761;
proportional representation and
cumulative voting through multi-
member constituencies, 773; question
of success of adult franchise, 836-7;
representation of Scheduled Castes,
761-2; reservation of seats for Sikhs
with joint electorates, 768; reservation
of seats for tribals and aboriginals,
762; separate electorates, 753, 758,
760; separate electorates for depressed
classes, 742; separate electorates for
Europeans, Sikhs, Indian Christians
and Anglo-Indians, 742; separate
electorates for Muslims, 741, 742;
special representation for women,
labour, commerce and industry, min-
ing and planting, and landholders,
742; Vallabhbhai Patel on joint
electorates, 468-9

Frankfurter, Justice of U, S. Supreme
Court, 235; B. N. Rau’s discussions
with, 187; on jurisdiction of Supreme
Court, 487

French National Academy, 124, 785
French Revolution, 319
Fundamental principles of governance,
177, 330

Fundamenta! rights, 152, 154, 161, 171,
173, 177-9, 182, 212, 233, 303, 315, 317,
321, 4S4, 498, 748, 832; abolition of
titles, 205-11; abolition of untoucha-
bility, 202-5; adult franchise, 471;
All-Parties Conference on, 320; appli-
cation to armed forces, 312; Bombay
resolution, 171; Congress Declara-
tion (of 1933), 184, 320; cultural and
educational rights, 179; curtailment
under certain circumstances, 308;
declaration in Commonwealth of
India Bill (1925), 172; Delhi reso-
lution, 172; equality before law and
equal protection of law, 179, 182-4;
equality of employment opportunity,
192-201; for minorities, 753, 754;

freedom of assembly, 211, 212; free-
dom of association, 211; freedom of
expression, 2! 1-3; freedom of press,
; 211; freedom to preach and convert,
258; historical background, 170-5;
in Home Rule Bill, 171; interpreta-
tion of, 304; jurisdiction of Supreme
Court and other courts re, constitu-
tional remedies, 304-6; justiciable
and non-justiciable, 175, 276, 279,
280, 320, 321, 324, 330; Karachi
resolution, 173; legislation to give

effect to, 314-8; Madras resolution,
172; minors not free , to change
religion without guardian’s permis-
sion, 258; Nehra, Committee ' on,

■ 172-3, 184; non-recognition of any
religion as State religion, 258; power
of Parliament to legislate on, 316-7,
318; prerogative writs, 303; prohibi-
tion of discrimination, 182-91, 754;

prohibition of payment of taxes for
promotion of any particular religion,
257; prohibition of religious conver-
sion by coercion, etc., 258; prohibi-
tion of traffic in human beings,
forced labour and employment of
children in factories, 249-57; protec-
tion in respect of conviction of
offences, 228-31; protection of, 830;
protection of cultural and educational
rights of minorities, 272-81; Regional
Councils for tribal and excluded
areas, 225; restrictions in their appli-
cation to armed forces, 311-4; res-
triction while martial law is in force
in any area, 311-4; right against
exploitation, 179; right of Anglo-
Indians to receive education in Eng-
lish, 751; right of Sikhs to wear and
carry kirpans, 258; right to constitu-
tional remedies, 179, 301, 302, 304-11;
right to education in national
language, 784; right to equality, 179;
right to freedom, 179, 21 1-20; right to
freedom of movement, 211; right to
freedom of religion, 179, 257-71;
right to freedom of speech and
expression, 262; right to freedom of
trade and commerce and intercourse
within India, 211, 701, 702, 703, 706;
right to personal liberty, 281; right
to practise any profession, etc., 706-7;
right to property, 179, 231, 232,
235, 281-99; right to use one’s

mother-tongue, 272, 273; right to
vote, 460, 461-2; right to vote not
to be included in chapter dealing
with, 462; safeguards for minority
communities, 749; Sapru Committee
on, 175; secrecy of correspondence,
211, 212, 213, 214, 215; suggestion
for inclusion of Hindi as national
language in, 784, 787; suspension of
right re. constitutional remedies dur-
ing emergency, 304, 305, 307, 308,
309, 310, 810, 818, 819-20; writs for
enforcement of, 505
Fundamental Rights Advisory Com-
mittee, 93-4, 107-10, 120, 134, 151,
152, 153, 175, 177, 184-5, 187, 194,
195, 205, 208, 215, 263, 273, 274, 278,
285, 286, 326, 327, 328, 330, 383, 387,
402, 421, 746, 747, 754, 755, 757, 758,
759, 765, 766, 768, 769, 770, 771, 772,
773, 774, 778, 785, 827, 839; accept-
ance of recommendations of Drafting
Committee,,,, re, ''hackw^rd ■ ■ ■■ '.tribal

870

FRAMING OF INDIA’S CONSTITUTION

areas, 575-6; ad hoc committee to
consider provisions re. prohibition of
traffic in human beings and forced
labour, 252; appoints sub-committee
to consider position of Sikhs, rights
of minorities in East Punjab and
reservation of seats for minorities
in West Bengal, 766-7; Chairman of,
see Patel, Vailabhbhai; composition
of, 747; joint meeting of sub-com-
mittees on backward areas, 573-4; on
adult franchise, 471; on citizenship,
151; on constitutional remedies, 305;
on Council of Ministers, 373; on
cultural and educational rights of
minorities, 273-4; on Election Com-
mission, 463; on enforcement of
fundamental rights, 483-4; on equa-
lity of employment opportunities,
193-6; on joint and separate electo-
rates, 468; on jurisdiction of Supreme
Court and other courts to enforce
fundamental rights, 304-5; on legis-
lation to give effect to fundamental
rights, 315; on protection in respect
of conviction, 228-9; on question of
* constitutional safeguards for mino-
rities, 757; on restriction or abroga-
tion of fundamental rights for armed
forces, 312; on right against exploi-
tation, prohibition of traffic in
human beings and forced labour and
prohibition of employment of child-
ren in factories, 252-3; on right to
freedom, 214-5; on right to freedom
of religion, 261-2; on right to pro-
perty, 284-5; on right to vote, 461-2;
on separate electorates, 757; on
trade and commerce, 699-700; on
untouchability, 202-3; proposal of
Cabinet Mission regarding, 68, 93-4;
recommendations re, minorities, 757-9;
recommendations re. procedure
for amendment of Constitution, 827:
recommends abolition of communal
representation, 470 ; recommends
Hindustani in Devanagari or Urdu
script as official language and English
as second official language, 784 ;
report of the Minorities Sub-Com-
mittee on directive principles of
State policy considered by, 326;
reports on minorities and Anglo-
Indians, 759-60 ; sub-committees
of, 115; sub-committees on back-
ward and tribal areas, 574-5, 577 ;
sub-committees to consider problems
of tribal and excluded areas, 573,
584-5; to report on scheme for'
administration of tribal and excluded

. areas, 573

Fundamental Rights Committee, see
..Fundamental Rights Advisory

■■■" Committee

'Fundamental' Rights'. '■ Sub-Committee
(see also Minorities Sub-Committee),

150, 176-7, 179, 181, 184-5, 192, 215,
262, 272, 301, 302, .304, 700, 748,
784; appointed by Advisory Com-
mittee, 175; interim report on
minority rights, 754; on abolition of
titles, 205-6, 208-9; on adult

franchise, 471; on cultural and
educational rights of minorities, 272;
on Election Commission, 460-1; on
equality of employment oppor'tunity,
192-3; on freedom, of trade and
commerce, 699; on legislation to
give effect to fundamental rights,
315; on prohibition of discrimina-
tion, 183-5; on protection m respect
of conviction for offences, 228; on
protection of life and personal liberty
and protection against arrest and
detention, 231-49; on restriction „or
abrogation of funda.mental rights for
armed forces, 312; on right" against
exploitation, ^ prohibition of traffic
in human beings, forced labour and
prohibition of employment of chil-
dren in factories, 249-52; on right
to constitutional remedies, 303-4; on
right to freedom, 211-5; on right to
freedom of religion, 258-61; on
right to property, 282-3; on right to
vote, 460; on special representation
in services, 193; on tribal and
excluded areas, 222, 225; on iin-
touchability, 202

Fundamental Rules for Civil Services,
708

Gadgil, D. R., 107

Gadgii, Narhari Vishnu, 102, 126, 673
Gandhi, Feroz, 103
Gandhi, Mohandas Karamchaiid, 8, II,
15, 17-8, 19, 22, 26, 27, 29. 30. 31.
32, 34, 36/41, 42, 44, 45. 47, 48,

49, 50, 51, 52, 54, 55, 56, 57, 61. 87.
■88, 96, 171, 173, 205, 207, 721, 782,
783, 788, 796, 797, 803, 838; assumes
control of movement for political
.reforms, 32; Civil disobedience
movement (1930-1), 676; fast of, 48,

50, 53; on Attlee’s statement, 87;

• letter of President Roosevelt to,
46-7; letter to Genera! Chiang Kai-
shek, 44-6; Linlithgow's parley's whh,
■ 30; Nehru’s talk re. constitiiiional
reforms with, 44, 45; on settlement
with Jinnah, 55-6; release from
detention, 53; suggests complete
withdrawal of British and Allied
.troops ' from India, 42: to lead
struggle for independence. 46. 48
Gandhi, Sanialdas Laxrnidas, 105
Gangpur State, merger with Orissa, 554
Garauli State, 556
Garo Hills District, 583. 5R9
Oaurihar State, 556

INDEX

871

Gautara, Mohanlal, 103
Germany, 27, 59, 61
Ghosh, Amiyo Kumar, 103, 223, 695
Ghuznavi, Abdul Halim, 102
Goa, 147, 164, 568
Goa, Daman and Diu, 442, 568
Goenka, Ramnath, 102, 783
Gokhale, Gopal Krislina, 3, 6, 741
Gondal State, 556
Gopal Narain, 103
Gour, Hari Singh, 104
Government of India, role in Montagu-
Chelmsford Reforms in relation
to Provinces, 592-3; term used for
the irst time in Charter Act, 592
Government of India Act (1909), 802
Government of India Act (1919), 7, 8,
9. 19, 20, 27, 171, 334, 335, 336, 418,
470, 474,' 480, 570, 593, 595, 708, 709,
724, 742, 802, 803

Government of India Act (1935), 20,
26, 30, 41, 42, 52, 53, 58, 59, 60,
61, 62. 63, 112, 133, 136, 142, 143,
150, 170, 171, 174, 282, 283, 285,
287, 297, 303, 334, 335, 336, 359-60,
362-3, 365, 366, 368, 373, 374, 383,
388, 398, 399, 401, 402, 408, 412, 413,
414, 420, 421, 422, 428, 437, 448,

467, 459, 476, 477, 481, 482, 483,

4S4, 4S5^ 496, 497, 498, 499, 502,

503, 504, 505; 507, 514, 515, 516,

517, 528, 532, 544, 549, 559, 562,

592, 595, 596, 599, 600, 604, 605,

608, 609, 611, 614, 615, 622, 641,

642, 643, 644, 647, 650, 652, 655,

656, 666, 668, 669, 670, 671, 689, 699,
712, 725, 726, 727, 730, 733-4, 735,
736, 743, 744, 751, 758, 759, 765,

779, 802, 803, 808, 814, 825, 827,

835, 836; creation of Crown Repre-
sentative to deal with Indian States,
515-6; features of, 419-20, 593-4;
miscellaneous financial provisions,

654; provisions re. administration of
Chief Commissioners* Provinces,

558-9; provisions re. Auditor General
for Centre and Provinces, 413; provi-
sions re. backward areas, 571; provi-
sions re. excluded areas, 572; role of
Indian States in proposed federation
of India under, 594-5 ; to be brought
into operation in two stages, 419
Governors, 391-3, 402; appointment
of, 383-4, 828, 829; discretionary

powers of, 399, 400, 401, 405;

emergency powers of, 391, 804-5,

810; functions during emergency, 811;
functions in relation to Public

Service Commission, 728-9; issue, of
proclamation of emergency, .. 805;
powers during emergency of, 806;
power of pardon, 399; power to pro-
mulgate ordinances, 478-9; power to
return Bill to State Legislatures,
448-9; Provincial Constitution Com-
mittee on, 386-7; recommendations

of Special Committee regarding,
393-4; to report to President in case
of emergency, 804, 805, 807; role
of, 394-6; special legislative powers
of, 475; special responsibilities of,
383, 399-401; special powers of

Governor of Assam, 400; special
powers of, 383, 388-9; special respon-
sibilities regarding minorities, 742-3;
suggested methods of choosing of.
827-8; term of office of, 384; to
obtain instructions of President before
promulgation of ordinance, 479
Governor-General of India, 399;
ordinance-making powers of, 476;
reserved powers of, 60; special
legislative powers of, 474
Govind Das, 104, 142, 207, 223, 328,
783, 786, 787, 788, 790, 791, 797. 800,
840

Great Britain, 2, 6, 10, 17, 18, 19, 27,
29, 31, 37, 41, 42, 43, 45, 46, 48.
54, 62, 63, 83, 88, 90, 126, 167, 301,
302, 304, 310, 326, 334, 335, 337,
340, 362, 376, 385, 428, 439, 486,
497, 515, 827
Greeks, 142

Guha, Arun Chandra, 102
Guha, Girija Shankar, 106
Gujarat, 147, 407, 794
Gupta, Deshbandhu, 104, 115, 223,
560, 564, 565, 566

Gupta, Ghansham Singh, 104, 141, 787

Gupta, Ram Chandra, 103

Gupte, B. M., 102, 355, 503, 631, 807

Gurgaon, district in East Punjab, 769

Gurung, Ari Bahadur, 102

Guyana, 163

Gwalior State, 99, 542, 557; ruler of,
133

Gwalior-Indore-Malwaj United State
of, see Madhya Bharat

Habeas corpus, writ of, 302, 303, 304,
305, 306, 310, 504-5
Hailey, Malcolm, 9, 10
Halifax, see Irwin
Hamilton, Alexander, 593
Hanumanthaiya, K., 104, 223, 224, 542,
668

Harijan, 42
Haryana, 147

Hasrat Mohani, 103, 131, 142, 225
Hath!, Jaisukhlai, 105
High Courts, 116, 405, 408, 482, 489
507, 615, 617, 636, 638, 714, 729,732,
739, 810, 818, 821; administration and
administrative expenses, 505; ^ ap-
pointment, retirement, and conditions
of service of judges of, 497, 499-501,
503-4; ban on practice after retire-
ment by judges of, 502-3; control
over subordinate courts, 508; Gover-
nor to reserve for President’s consi-
deration Bills impairing position

872

FRAMING OF INDIA’S CONSTITUTION

of, 457; historical background, 496;
in Indian States, 511; jurisdiction and
powers of, 504-5; jurisdiction in
revenue matters, 498; language to
be used in, 793, 798; memorandum
of conference of Chief Justices on,
500;’ position before Constitution,

' 496-7; power of superintendence over
. subordinate courts, 498; procedure
for removal of judges of, 501; Pro-
vincial Constitution Committee on,
497; Provision for Chief Commis-
sioners’ Provinces, 567; provisions
in Draft Constitution, 499; Special
Committee on, 501, 509; suggested
Advisory Board for appointment of
Judges to, 499-500; territorial juris-
diction of, 506; to try election
petitions, 472; transfer of judges of,
505; writ jurisdiction of, 302, 303,
306, 307, 308, 498, 504-5
Himachal Pradesh, 101, 147, 539, 545,
555, 565, 567, 568; member of the
Constituent Assembly from, 106
Himatsingka, Prabhudayal, 102
Flindol State, merger with Orissa, 554
Hindu (of Madras), 27, 328; article
regarding solution of Indian pro-
blems, 31

Hindu Mahasabha, 51, 57, 62, 98
Hindu Religious Endowments Act, 192
Hindustan, 54, 141; Constitution-mak-
ing body for, 65
Hindustani Prachar Sabha, 782
Hitler, Adolf, attack on Poland, 27
Hoare, Samuel, 18, 19, 29
Holland, 30

Home rule for India, 4
House of Commons, 63, 448; Amery’s
statement re. political reforms in
India, 61, 62; Attlee’s speech re.
Cabinet Mission to India, 64; Chur-
chiil’s opposition to India Policy,
18; see also British Parliament
House of Lords, 12; see also British
Parliament

House of Representatives of U.S.A.,
353.

Hunter Committee, to enquire into
Punjab disorders, 6; report of, 6
Hussain Imam, 104, 114
Hyder Hussain, 103

Hyderabad State, 99, 100, 101, 442,
520, 539, 541, 545, 547; Nizam of, 14,
133, 533, 543, 547; question of
accession to India, 531; Reading’s
letter to Nizam on Interpretation of
treaties with Princely States, 14

Ibrahim, .K. T. M., 761
Idar State, merger with Bombay, 555
fmam,' Hussain, 264,174, 332, 340
Immigration, into India Act (1924), 149
Imperial '''Conference, 7 ■

Imperial War Cabinet, 7, 52
Imperial War Conference, 4
Indemnity Act, 312-3
India (Consequential Provisions) Act

(1949), 168
India Office, 62

Indian Christians, see Mi'iiorities
Indian Council of World Affairs, 329
Indian Councils Act (1861), 473
Indian Councils Act (1892), 466
Indian Evidence Act (1872), 2!3, 229,
244

Indian Independence Act (1947), . 91,
136, 137, 528, 531, 611, 721
Indian Independence (International
Arrangements) Order (1947), 138
Indian Law Review, 159, 219, 265
Indian Legislature, see Legislature,
Central

Indian National Congress, 1, 2-3, 6, 8,
12, 13-4, 15, 17, 19, 21, 22, 23, 24,
25, 26, 27, 28, 29, 30, 31, 32, 33,

35, 38, 39, 40, 41, 42, 45, 46, 47,

48, 49, 51, 52, 53, 54, 55, 56, 5'7,

60, 62, 65, 66, 67, 69, 70, 71, 73,

74, 75, 76, 78, 79, 81, 88, 96, 97,

98, 107, 108, 112, 119, 120, 134, 137,
171, 172, 173, 225, 292, 382, 431, 520,
594, 603, 604, 743, 744, 746, 757, 783,
794; accepts position outlined by
Cripps, 37-8; attitude towards
Cabinet Mission’s plan, 69, 70', 75;
Calcutta resolution, 6; declaration
of fundamental rights, 320; Lahore
resolution, 15; Madras resolution, 3,
12; on despatch of troops to Aden
and amendment of 'Government of
India Act, 26, 27; on future frame-
work of Constitution, 65; opposition
’ to division of India, 65; on separate
electorates, 467; reaction on annoiince-
ment of list of Executive Councils,
71, 72; resolution adopting Hindus-
tani as the language to be used in
^ the proceedings of, 782; sets up Ex-
perts Committee, 101; Surat session,
, i, 2; to concede in principle demand
for Pakistan, 54; see also Congress
Party; Congress Working Ccramittee
Indian Naturalization Act (1926), 149,
153

Jfndian Ocean, operation of , Ja'pasese

warships in, , 35

Indian Parliameiit, see Parliament .of

India

Indian Pena! Code, 188, 191, '212; 215,

221

Indian Post Office . Act (1898), 214,

220 ■

Indian Reforms Enquiry Conmiittee,
recommendation re. separation of
audit and accounts, 412
Indian States, 10, 13, 31, 32, 33, 37,
'58, 68, 69, 79, 95, 98, 99, 109, 110,
112,. 117, 121, 122. 124, 126. 130,
.'133, .135, 137, 139, 140, !43, 144,

INDEX

873

145, 149, 155, 160, 193, 208, 225,

264, 307, 315, 343, 366, 367, 369,

384-5, 389, 390, 398, 419, 421, 422,
424, 426, 430, 432, 433,.. 443, 465,

480, 482, 484, 488, 489, 494, 511,

512, 514, 516, .517, 518, 519, 520,

521, 523, 525, 535-7, 542, 546, 563-4,
572, 592, 593, 595, 598, 599, 600,

601, 605, 608, 610, 613, 616, 622,

628, 634, 644, 645, 647, 651, 652,

661, 665, 699, 700, 703, 705, 706,

707, 719, 765, 766, 774, 776, 777,

779 , 815, 828, 829; accession to
Federation, 385, 516-7; address of'
Mountbatten , O'f August 15, 1947
.regarding, 530-1; agency for exercise
o.f functions in relation to, 514;
agreements , and arrangements on
matters of common concern, 514;
allocation, of seats in Parliament
consequent to integration of, 434;
Aiiibcdkafs comments in Constituent
Assembly on the position of, 539 ;
application of Federal Xist to be
with the consent of, 609; appoint-
ment of Butler Committee to re-
examine position of, 514-5; B. N.
Ran Committee to frame model
constitution for, 541-2; B. N. Rau’s-
opinion on jurisdictional powers of,
528; barring jurisdiction of Supreme
Court and other courts in respect
of certain matters relating to Rulers
of, 550; Butler Committee on,
13-4; Cabinet Mission’s plan ' re-
garding, 68-9; Cabinet , Mission’s
views on question of their accession
to Indian Union, 518; Chamber , of
Princes Standing Committee sets up
negotiating committee to discuss
matters of common concern, 519-20;
changes in Constitution, consequent
on political developments In, 442 ;
consideration by Standing Committee
of Chamber of Princes of suggestion
of Cabinet Mission regarding, 519-20;
Constituent Assembly' for union of,
533; Constituent Assembly to frame
Constitution for, 542; Co.!}stitution
of Vindhya Pradesh, 533; Consti-
tutional Advisory Committee of,
522; constitutional position, 511-2;
Creation of States Department to
negotiate and conclude Instruments
of Accession with, 529; Crown
Rep.re$.'entative ' to dea.l with mat-
ters relating to, 515-6; executive,
legislative and judicial functions, 549;
exercise of administrative jurisdiction
bv British Government over, 512-4;

Expert Committee on Financial Pro-
visions on position of Indian States
in new financial system, 64; exten-
sion of article, 255; re, grants-in-aid
for Welfare Schemes for Scheduled
Tribes and Scheduled Areas, ,. 550;

Extra-Provincial ' Jurisdiction Ordi- ■
nance promulgated to :enab!e .Gov-
ernment of India to exercise powers
of administration over, 531-2; finan-
cial arrangements in regard' to, 664;
financial relations with Centre, '550.
682-3; fo.rmatio.n of Madhya Bharat,
PEPSU, Rajasthan, Saiirashtra,.
and _ Travancore-Cochin, 533; fresh
elections to Constituent Assembly
after merger,' 100-1; Instrument of
Accession regarding, 529-31; integra-
tion and consequential change in
constitutional set-up of, 397-8, ,840;
Joint sub-committee .. set up' by Union
Constitution Committee and Provin-
cial Constitutio,n , Committee ,, regard-
ing, 607; Kathiawar t 3 rpe of merger,
538; lapse of paramountcy, 526-30;
limitations ' imposed on Constituent
Assembly by Cabinet Mission’s state-
ment on, 534; Linlithgo.w’s negotia-
tions over ' drafting of a standard
Instrument of Accession with rulers
of, 594-5;, loyalty of rulers to British
Crown, 512; maintenance of armed
forces by, 549; merger agreements
with Dominion Government, 532;
merger with .. B.ihar, , 555; .merger with.
Bombay, 554-5; merger with Central
Provinces: and Berar, 533, 554, 563-4;
merger with East Punjab, 554-5;
merger with Madras, 554-5;, merger
with neighbouring provinces, : S32;
merger' with Orissa, 533, 554-5, 563-4;
merger with United Provinces,. 555;
merger with West Bengal, 555; m„odi- .-
fications required for: meeting special
circumstances of, 547-8; Motilal
Nehru Committee on, 13; negotiation
of new treaties and fresh agreements
with, 529; observations V by , Joint
Select Committee on Indian Consti-
tutional Reform . on, 539-40 ; Orissa
Government’s criticism of provisions
in Draft Constitution regarding,
536-7; Orissa type ^ of , merger, 538;
paramountcy of British Government
over, 512; payment of privy purses
to Rulers of, 540, 682;^ Pethick-
Lawrence on, 526-7; position under
new situation, 548-9; powers' of
Political Agents in, 513-4; process of
merger and integration in respect of,
539; proposed distribution of seats in
Constituent Assembly and method
of return of ■ representatives, 521;
proposed power of President to
modify or terminate any financial
agreement between Centre and an
Indian State, 665; provision regard-
ing general supervision over the
Governments of, 551; provisions
regarding ' , guarantee or ; assurance
given to rulers of, 550; provisions
relating to other States not to apply

874

FRAMING OF INDIA’S CONSTITUTION

to Jammu and Kashmir, 552-3 ;
question of paramountcy over, 514-5,
518; question of participation in
Constituent Assembly, 525-6 ; question
of representation in Constituent
Assembly, 518-9, 524-5 ; radical
changes effected between 15-8-47 and
26-1-50 in constitutional and political
position of, 531-3 ; radical changes in
attitudes of their respective Govern-
ments as a result of integration and
setting up of popular Governments,
541 ; relations with Centre, 610-1 ;
Report of Negotiating Committee of
Constituent Assembty, 526; report of
Union Constitution Committee and
Provincial Constitution Committee
on, 534-5; representation in Parlia-
ment of, 68-9, 431-2; representatives
in Constituent Assembly, 526; resolu-
tion regarding negotiation with Con-
stituent Assembly passed by Rulers of,
521-2 ; restrictions on powers of
Parliament to legislate for, 618 ; role
in federation envisaged by Govern-
ment of India Act (1935), 594-5 ;
Rulers of, 369, 520 ; Ruler’s personal
income liable to taxation, 655 ; special
concession suggested by sub-committee
of Union Powers Committee, 603 ;
standards of administration, 511;
Standstill agreements with, 530, 531;
statement by Valiabhbhai Patel in
Constituent Assembly on progress
of integration of, 551-2 ; status in
international field, 512; steps to secure
integration with Indian Union, 532-4;
Sub-committee of Union Powers
Committee on, 601 ; their internal
constitutions and position in Union,
546-7 ; Union Powers Committee on
extension of Federal List to, 610 ;
Lnsympathetic attitude of Rulers
towards Indian States Peoples’ confe-
rence, 520 ; V. P, Menon on mutual
rights and obligations of Indian
States and Union of India on termina-
tion of paramountcy, 527-8; views
of British Government cn lapse of
paramountcy over, 526-9 ; White
Paper on, 533; see aho Princely
States

Indian States Council, to be esta-
blished by President to secure co-
ordination between States,, 646-7

Indian States Enquiry Committee, see
.Butler Committee

Indian States Financial Enquiry Com-
mittee, chairman and members of,

' ,'540; report of, 541; t.e.rms of reference,

; 540..

Indian,. Statutory Co.mmission, see
Simon 'Commission

Indian Succession Act (1925), 157, 159

Indian .Telegraph. Act (1885), 220 '
Indo-China,. 47 ■

Indonesia, 163
Indore State, 99, 557
Indus river, 142

Instruments of Accession, 20, 23, 136,
320, 360, 388, 391, 401, 402, 403,
404-5, 406, 477, 482, 491, 499, 516,
529, 530, 534, 552, 594, 742, 743, 756,
758, 762, 763, 765; Drafting Com-
mittee on, 374-5, 378, 379, 380;

with Indian States, 528-3!

Inter- Allied Conference, on matters
concerning Britain and the Domi-
nions, 7; delegates to, 7
Interim Government, 72, 73, 7.4, 81, 107;

Muslim League’s entry into, 81
International Bill of Rights of Man,
by Lauterpacht, 232, 320

International Labour Organization, 171
Inter-State Commission, to adjudicate

disputes regarding Inter-State trade
and commerce, 702

Inter-State Commission of United
States, 704
Iran, 47
Iraq, 47

Ireland, 130, 135, 168, 1.72, 327, 350,

428, 430, 487, 497, 767, 824, 827
Irish Constitution, 120, 154, 155, 172,

283, 308, 320, 325, 326, 327, 339, 424,
451, 453, 825 ; procedure for

impeachment of President, 353-4
Irish Free State, see Ireland
Irish Parliament, 135, 327, 354, 429
Irish Senate, see Irish Parliament
Irish Supreme Court, 327
Irwin, Viceroy of India, 15, 17, 19
Irwin-Gandhi pact, 17, 19
“Islam in danger”, 24
Italy, 27

Jafar Imam, Saiyid, 104
Jafrabad, 556

Jagat Narain Lai, 103, 126

Jagjivan Ram, 103, 202, 749, 750

Jain, A. P., 102, '286, 346

Jain, Kusum Kant, 105

Jaipur State, 41, 99, 140, 526, 557, 60 . 1 ,

- 608 ; ag.reement on salt wiili, 527
Jairamdas Daulatram, 103, 401, '753
Jaisaimer State, 557 . ■ ■

Jajoo, Sitaram S., 105
Jambhugodha State, merger wiili
Bombay, 555

Jammu and Kashmir, 100. 146. 147.
406, 442, 539, 545, 547, 553,

adoption of article 370 in respect of
553 ; Maharaja of, 543, 547 :

members of Constituent Assembly
from, 104-5 ; provisions relating to
other States not to apply to, 552-3 ;
second chamber in, 457
Janjira State, merger with Bombav,
554 .

Jaora .State,' 557 '

INDEX

875

Japan, 38, 44, 45, 47, 50, 51, 59, 61
Japanese Constitution, 236
Jasdaii State, 556

Jashpur State, merger with Central
Provinces and Berar, 554
Jasimiiddin Ahmad, 103
Jaso State, 556

Jatli State, merger with Bombay, 554
Jawhar State, merger with Bombay,
555

Jayakar, M. R„ 124, 126
lava Prakash Narayan, 188, 219, 220,
266, 276, 277, 287, 288, 293, 393, 623
Icdhc, Keshavrao Marutirao, 102
Jehovah's Witnesses case, 260
Jennings, Ivor, 199
Jetpur State, 556
Iha, Binodanand, 104
Jhabua State, 557
Jhalawar State, 557

Jhanjliunwala, Banarsi Prasad, 103,
166

Jigni State, 556
Jind State, 557

linnab, Mohammad Ali, 3, 11, 16, 21,
22, 25, 33, 34, 42, 51, 53, 54, 55,
56, 57, 60, 61, 63, 65, 72, 74, 75,
76, 77, 87, 89, 91 ; attitude towards
Constituent Assembly,. 75 ; communal
propaganda of, 743-4 ; Gandhi’s
views*" on settlement with, 55-6; his
conception of Pakistan, 56;
Linlithgow’s meetings with, 30; on
partition of Bengal and Punjab, 87-8,
89, 91

lobat State, 557

Jodhpur State, 99, 526, 557 ; agreement
on salt with, 527

Johnson, Louis, Special Envoy of
Roosevelt, 38, 42, 43, 48 ; efforts to
bring about agreement between
Congress and Muslim League, 42;
formula re, defence of India, 38-9
Joint electorates, see Franchise and
elections

Joint Parliamentary Committee, 21
Joint Select Committee on Consti-
tiilional Reform, 470, 497, 506, 507,
515, 593, 594, 709-10, 725; observa-
tions on Princely States, 539-40; on
centralized system of audit and
accounts, 413
Jiibbai State, 555

Judicial Committee Act (1833), 481
Judiciary, independence of, 301, 503
Jugal Kishore, 103, 830
lunagadh State 556
Jurisdictional and non-Jurisdictional
States of Gujarat, merger with
Bombay, 555

IvABiR, Himiayun, 107
Kabirpanthls, 751, 768, 770„ 771.
Kakkan, P., 101

Kalahandi State, merger with Orissa,

554

Kalat State, 558
Kaisia State, 557
Kamaraj, K., 101

Kamath, Hari Vishnu, 104, 13 L 14L
142, 186, 197, 203, 207, 209, 210, 225,
241, 244, 246, 255, 256, 266, 269, 270,
293, 294, 308, 310, 313, 314, 317, 330,
347, 379, 401, 403, 404, 437, 438, 476,
477, 492, 503, 637, 639, 685, 686, 687,
731, 732, 813, 815, 816, 818, 830, 831
Kamta-Rajaula State, 556
Kankar State, merger with Central
Provinces and Berar, 554
Kanpur, 8

Kapoor, Jaspat Roy, 103, 166, 197,
198, 200, 242, 262, 270, 294, 295, 298,
439, 492, 731, 732, 734
Kapurthala State, 557
Karachi, 171
Karauli State, 557
Karikal, 147

Karimuddin, Kazi Syed, 104, 223, 230,
231, 236, 254, 278, 309, 339, 342, 355,
377, 390, 434

Kashmir, 99 ; Maharaja of, 16; see
Jammu and Kashmir
Kathiawar, United State of, see
Saurashtra

Kathiwara State, 557
Katju, K. N., 152, 387, 447, 642, 649
Kautilya, author of Arthasastra, 319
Kawardha State, merger with Central
Provinces and Berar, 554
Keonjhar State, merger with Orissa,
554

Keonthal State, 555
Kerala, 146, 147
Keskar, B. V., 103

Khairagarh State, merger with Central
Provinces and Berar, 554
Khaitan, D. P., 97, 114, 154, 608, 613
Khalifa, 6

Khaliquzzaman, Chaudhury, 468, 757,
758. 760

Khan, Aziz Ahmad, 102, 198, 390
Khan, Khizr Hyat, 63
Khan, Liaqat Ali, 60, 77
Khan, Muhammad Ismail, 103
Khan, Sikandar Hyat, 21, 31, 32, 33,
34, 41

Khan Sahib, Chief Minister of N.W,
F.P., 63

Khandekar, Hemchandra Jagobaji, 104*
233, 435, 750, 757

Khandpara State, merger with Orissa,
554

Khaniadhana State, 556
Khardekar, B. H., 105
Kharsawan State, merger with Bihar,
.555

Khasi and Jaintia Hills District, 583. 589
Khasi state, 544 ..x-r

Kher, Bal Gangadhar, 102, 387, 447,
635, 697, 726, 824

876

FRAMING OF INDIA’S CONSTITUTION

Ktiiiafat movement, , 6
Khiichipur State, 557
Khimji, ..Bliawani Arjiiii, 106
Khirasa State, 556
Ktiursed Lai, 103
Kidwai, Rafi Alimad, 103
KisLengarh State, 557
Kodagus, inhabitants of Coorg, 558
Kolhapur ■ State, 99; merger with
Bombay, 555

Korea ■ State, merger with ' Central
Provinces and Berar, 554
Koshal Bidarbha, 544; see also Madhya
Pradesh

Kotah State, 99, 557
Kotda—Sangani State, 556
Kothi State, 556
Kripalani, J. B*, 103, 131
Kripalani, Mrs. Sucheta, 103
Krishak Praja Party, 97
Krishnamachari, T. T,, 97, 101, 114,
145, 189, 198, 199, 200, 209, 210, 223,
224, 230, 231, 246, 247, 256, 267, 288,
331, 365, 371, 379, 397, 399, 404, 405,
415, 416, 417, 434, 437, 452, 454, 455,
456, 494, 501, 548, 550, 621, 631, 636,
639, 668, 670, 686, 697, 703, 704, 705,
706, 734, 736, 738, 776, 780, 788, 816,
839, 840

Krishnamachari, V. T., 105, 140, 208,
307, 540, 601, 603, 608, 613, 622, 647,
665, 666, 811
Kulu, 44

Kumbhar, Ratnappa Bharamappa, 105
Kumharsain State, 555
Kunhiraman, P., 102, 203
Kunihar State, 555

Kunzru, Hriday Nath, 97, 103, 124,
144, 145, 198, 242, 263, 264, 274, 279.
364, 416, 432, 466, 476, 477, 479, 510.
675, 676, 679, 683, 684, 685, 696, 734,
805, 814, 817, 819, 821, 823, 836, 838
Kurundwad State, merger with Bombay,
554

Kurwai State, 557

Kutch, 101, 407, 539, 545, 556, 565,
567, 568 ; member of the Constituent
Assembly from, 106
Kuthar State, 555 ■

Laccadive, Minicoy and Amindivi
Islands, 147, 442, 568, 569, 570 ■

Lahau!,. 569

Lahiri, Somnath, 186, 215, 216

Lahore, 15 ; session of Muslim League
at, 33

Lakhtar State, 556 .

Lakra, Boniface, 103.

Language, adoption of provisions
relating to, 787, 799; Bengali, 781,
799, debate In Constituent Assembly
on, 794-800 ; Dravidlaa languages.
781. ■English,..." '781, 784, 786, 788,
789, 798,. "800; English, ' .as ' additional ■

official language, 784, 790 ; English,
as official language during British
rule, 781; English, Cong,ress Working
Committee’s resolutioji for use during
transitional period, 791 ; English,
conti.nuance for official purposes, 793 ;
English, retention for a stipulated
period, 787, 794, 795 ; English,

Special Committee’s recommendation
regarding,. 792 ; English, ultimately to
be replaced by Hindi, 798 ; English,
used for expressio,n of India's political
aspirations, 782 ; English., value to
India, 782 ; Gandhi’s advocacy of
use of Urdu an‘d Devanagari Scripts,
782; Gujarati, 781; Hindi, 781, 782,
783, 786, 787, 788, 794, 797, 800;
Hindi, as an article of Directive
Principles, 793; Hindi, as national
language of Union, 786; Hindi, as
official language, 790; Hindi, Congress
Working Committee’s resolution for
adoption as State language, 79! ;
Hindi, danger of pressing too far the
issue of, 788-9 ; Hindi-Hindustani
controversy, 783 ; Hindi, in Deva-
nagari script to be official language
of India, 783, 792, 795-6; Hindi,
Language Commission to make
recommendations for progressive use
of, 792-3 ; Hindi, move to substitute
Hindustani as official language of
Union, 799 ; Hindi, Special Com-
mittee’s recommendation as official
language, 792; Hindi, ultimately to
replace English, 798 ; HIndi-Urdu
controversy, 744, 781, 783; Hindu-
stani, 782, 784, 785, 786, 787, 788,
792, 793, 796; Hindustani, as first
official language of the Union, 7S4;
Hindustani, Centre’s power to declare
all official records to be kept In, 784:
Hindustani, claim as National
Language, 782; Hindustani, danger
of its being sectional language, 785 ;
Hindustani, definition of, 782 :
Hindustani, efforts for spread of
study of, 783 ; Hindustani, move for
adoption as all-India language with
Devanagari and Urdu scripts, 783:
Hindustani, move to substitute in
place of Hindi as official language
of Union, 799; Hindustani, not to be
adopted as official language, 797 ;
Hindustani, proposal for use as official
language, 791; Hindustani, proposed
establishment of National Academy
for, 785 ; Hindustani, proposed use
In Ro.man, Devanagari and Persian
scri.pts, 784-5; Hindustani, to be used
in .proceedings of Congress, 782 ;
issue before Constituent Assembly,
840; Kannada, 781; ‘language
imperialism”, 788; language to be
used in Slate Legislatures, 785 ;
Malayalam, 78! ; Marathi, 781 ;

INDEX. •

877

MEnsM-Ayyangar formula, 841 ;
xNalional, 275 ; official, 442, 781, 785 ;
Parliament by law to provide for use
of Hindi or Engiisb. for one or more
official purposes, 790; Parliamentary
committee to consider issue of, 799;
Persian, 781, 800: President’s power
rc. issue of order for use of Hindi
„ along with English for specific
purposes, 792 ; Punjabi, 751 ; Rashtra
Bhasha, 791 ; recommendation of
Fundamental Rights Sub-Committee .
re. Hindustani in Devanagari or
Urdu script as official language and
English as second, national language,
484 ; report of Fundamental Rights
Sub-Committee on, 784 ; Sanskrit,
78!, 783, 793, 796, 798 ; Sanskrit-
based languages, 781 ; Sindhi,
inclusion in Eighth Schedule, 801 ;
Special Committee of Congress party
on, 792 ; Tamil, 781 ; Teiugu, 781 ;
to be used in Parliament and State
Legislatures, 786, 789, 793 ; to be
used by States, 793; Urdu 279, 744,
781, 782; 784, 786, 787, 797 ; views
of Rajendra Prasad on language to
be used in Constituent Assembly,
788 ; vote on issue of, 793-4
Language Commission, 794, 796, 798,
799

Lansbury, George, 8
Lari, Z. H., 278, 279, 280, 286, 773, 779
Laskar, Nibaran Chandra, 104, 774
Latham, Chief Justice, of Australia,
260

Lathi State, 556
Latifur Rahman, 104
Lauterpacht, author of International
Bill of Rights, 232. 320
League, see Muslim League
League of Nations, 7, 171
Lee Commission, see Royal Commission
on Superior Services in India
Legislative Assembly, see Legislatures,
States

Legislative Councils, see Legislatures,
States

Legislative powers of the Executive.
473-9

Legislature, Central, 9, 10-1, 12, 58,
60, 95, 96, 98. 133. 298. 345,

346, 418, 445, 460, 594; Governor-
General’s special legislative powers
over, 474 ; Indian Legislative
Assembly, 467; Motilal .Nehru’s
resolution regarding constitutional
reform, lO-l, 12; President of Central
Legislative Assembly, see Patel,
Vithaibhai; proposals in White
Paper (1933), 20; reservation: , of
seats for Muslims,^ Scheduled Castes
and Indian Christians, 770: see
also Central Legislative ' Council;
Council of States ; Legislative
Assembly ; Parliament of India

Legislatures, States, 13, 60, 67, 68,
445, 450, 451, 460, 614, 616, 619, 623,
630, 668, 691, 693, _ 714, 827, 828 ; Act
not to be invalid :a,fter . receiving
assent on the ground that recommen-
dation required by Constitution .'not
given, 620; adult suffrage as basis
for elections to, 459 ; composition
of Legislative Assemblies, 454-5,
457-8 composition of Legislative
Councils, 453-4,^ 488 ; Constituent
Assembly’s decision regarding second
chambers, 451; decision of Lower
House to prevail . in a conflict
between two Houses, 456-7; demand
for Legislative Councils, 3; difference
of powers between two Houses ' of,
450 ; discussion ' in Constituent
Assembly on, 447-57 ; Drafting
Committee on second chambers, 451 ;
elections to Legislative Assemblies,

445, 471, 835 ; electoral roll for, 459 ;
in Indian States, 511; inconsistency
between Parliamentary laws and
State laws, 619 ; Jawaharlal Nehru
on composition of second chambers,
453 ; language of Bills, etc., in, 793 ;
language for transaction of business,

446, 785-7, 789; laying of regulations
regarding exclusion of matters from
purview of Public Service Commission
before, 736 ; Legislative Assemblies
to be electing bodies for Constituent
Assembly, 93; life of, 445; method
of nomination under Indian Councils
Act, 1892, to Legislative Councils,
466; minimum membership and
maximum membership of, 448, 449 ;
Money Bills in, 450 ; nomination of
Anglo-Indians to, 763, 771, 776, 780 ;
official language of the States, 442 ;
power of Governor to return Bills
to, 448-9 ; power of Governor to
summon and address, 458; power of
Legislative Assembly over Legislative
Council, 456-7; powers of Legislative
Councils, 456-7; powers, privileges
and immunities of members of, 448;
power to impose taxes on water or
electricity consumed, distributed or
sold by inter-state river valley
authorities, 692; power to make laws
relating to matters conceming
elections, 459; power to prescribe use
of language for certain ^ purposes,
798; Provincial Constitution Com-
mittee on Legislative Councils, 449;
provision for delimitation of territorial
constituencies, 446; provisions regard-
ing abolition or creation of second
chambers, 445, 449, 452-4, 827, 829,
832; provisions regarding meeting,
prorogation and dissolution, relations
.between two Chambers, privileges of
and disqualification for membership
to be based on Government of India

878

FRAMING OF INDIA’S CONSTITUTION

Act (1935), 445: recommeiidations
of Proviocial Constitmion Committee
on, 447-8; recommendations of
sub-committee on, 447; reservation
during emergency for consideration
of President of Money Bills passed
by, 820; reservation of seats for
minorities, Scheduled Castes and
' Scheduled Tribes, 449, 763, 764,
775-6, 780; second chambers ^ in

Assam, Bihar, Bombay, East Punjab,
Madras, United Provinces and West
Bengal, 445, 451; Special Committee’s
recommendation 'on composition of,
454; special legislative powers of
Governor over, 474; special represen-
tation, in, ,445; supersession during
emergency, 810; to consist of elected
members only, 11; to make laws
' • only for the State or, any part of
it, 614; , ,Upper ' Chamber to be
designated as Legislative Council, 445
Letters Patent, 303, 368
Liberal Federation, 51
Limbdi State, 556

Linlithgow, Viceroy of India, 26, 27,

. 30, 32, 33, 34, 40, 41, 42, 43, 45,
46, 48, 53, 744, 803; negotiation

with Rulers, of Indian States over
drafting of a standard Instrument of
Accession, 594-5; parleys with
Gandhi, Azad and Jinnah, 30
Lloyd George, David, 4
Loharu State, merger with East Punjab,
554

London, 15, 35, 40, 108, 124, 173, 725,
742, 802

Lucknow Chief Court, amalgamation
^ with Allahabad High Co'urt, 496
Lucknow University, Dean of Faculty
„ of Law, Singh, R. U.

Lugasi . state, 556

Luna,wada State, merger with Bombay,

■ 555 ,

Lushai Hills District, 583, 589, 590; see
aka Mizo District

,Lushai Hills District (Change of ,Name)
Act . (1954), 590

M ACDONALD, • John, ■ 593
MacDonald, Ramsay, 10, 15, 16, 17, 18.
19, 742;' statement on issue of

groupings and sections, 78-9
Madhya Bharat, 101, 442, 539, 542 ,
545, ■ 547, 557; formation of, 533 ;
members of the Constituent Assembly
from, lOSv merger of Panth Piploda
with, '545.' 546, 567

Madhya Pradesh, 146, 147, 401, 543, 578:

see also Central Provinces and Berar
Madras, :21, .27, 42, 68, 88,. 96, 100,
137, 146, 147, 198, 280, ' 294, 295 ,
300, 408, 426, 473, 543, 544, 559, 563,
570, 571, 573, 576, 578, 592, 656, 657 ,

689, 691, 692, 737, 764, 770, 773, 783,
794; Asthika Sabha, 266; devadasi
system in, 255; Finance Minister of,
see Reddy, B. Gopaia; Indian States
merged with, 554-5; members of
Constituent Assembly from, 101-2;
practice of begar in, 256: primitive
and tribal popuia'tions in, 569;
Public Service ^ Commission in, 725,
reservation of seats for Indian
Christians, 758; second chamber in,
451, 457;, suggestions on entries in
State List, 633
Madras (Citv), 3, 12
Madras High Court, 301, 303, 306, 498,
567

Madras Legislative Assembly, 159, 623,
752, 755; reservation of seats for
■ Indian Christians, 449
M'adras Legislative Council, 196, 276
Madras Sales Tax Act, . 692
Madras States, 101; member, of the
Constituent' Assembly from, 105
Magna Carta, 293, 819 ,

Mahtha, Sri iSfarayan, 104
Maharashtra, ,.147, 407; second chamber
in,. 457 ■

Mahatab, Harekrushna, 104., 671, 672
Mahe, 147

Maheshwari, Singh K., 106

Mahlog State, 555
Maihar State, 556

Maitra, .Lakshmi Kant, 102, 141, 179,
439, 639, 678, .693
M'ajumdar, Suresh Chandra, IC).2
Makrai State, merger with Centra!

Provinces and Berar, 554
Malaviya, Govind, 103
Malaviya, R, L., 105
Malaya, 44, 47, 161, 162, 163; cpeslion
of citizenship for Indians resident i.n
Malaya, 163 ■

Male.rk6tla State. 557

Maliya State, 556

Mallayya, U. Srinivasa, 102

Mahva State, 558

Manavadar State, 556

Manchester Guardian, 47

Mandamus, writ of, 302. 3'06, 310 . 505

Mandi State, 555

Mandloi, B. A., 104

Mangal State, 555

Manipur State, 101, !47, 539, 545, 556,

. 567, 568; member of Cimsiitiicnt

, Assembly from, 106

Mann, Bhopinder Singh, 103, 233.

254, 779

Marathwada, 407

Masanf, M. R,, 102, 125. 207. 32 L 325
784' .

Masoodi, Maiilana Mohararnail Saveed,
105

Masurya Din, 103
Mathwar State, 557

Matthai, John, 103, 671. 672, 820

Mavlankar. G, V„ 102. 114

INDEX

879

Maynrblianj State, 99; merger with
Orissa, 555

Mazhabis, 751, 768, 770, 771
Mehta, Balwant Rai Gopalji, 105
M'Chta, Balwant Sinha, 105
Mehta, G. L., 613

Mehta, Mrs. Hansa, 102, 251, 252, 260,
283 ,' 324, 325, 784
Mehta, Jivraj Narayan, 105
Mehta, Mohan Sinha, 264
Menoii, A. K., 102

Menon, . P. Govinda, 105, 541, 542;
deputed to discuss the issue of
Cochin’s participation in Constituent
Assembly, 526

Menon, V. P., 548; on mutual rights
and obligations of Indian States and
Union of India on termination of
paramountcy, 527-8
Meredith, Justice, 160, 162
Mcstoii Award, 597
Mikir Hills, 583, 589
Ministers, proposed provisions re.
appointment etc. in States, 401-2;
proposed provisions re. assets of,
403-4; representation of minority
communities in, 402; see also Council
of Ministers.

Minorities, 838 , 839 ; abolition of reser-
vations for, 771 ; abolition of special
privileges for religious minorities, 117;
Advisory Committee for safeguards
of, 468 ;" 5’ee also Fundamental Rights
Advisory Committee; appointment of
special " officers to investigate and
report on minority safeguards, 778-9;
Cabinet Mission’s plan regarding, 68,
468 : Centre to direct units to draw
up schemes for welfare of minorities.
Scheduled Areas and Scheduled
Tribes and to exercise control over
execution of such schemes, 763-4;
change of term to “ce.rtain classes”,
780 : claims .for reservation in services,
764 : claims of reservation for

Muslims, 772 - 3 ; claim of separate
electorate for Muslims, 773 ; communal
problem, 744 , 745 ; Congress resolution
re., 47-8: decision for reservation of
seats in Union Legislature for Mus-
lims, Scheduled Castes and ^ Indian
Christians and in State Legislatures
for Muslims and Scheduled Castes,
770 ; demand for reservations for
seats in Legislatures, 769 ; demand
for Sikh representation in Central
and Provincial Cabinets, 769 ; educa-
tional grants for Anglo-Indians, ' 764;
expansion of concept of, 742;
Governors to nominate Anglo-Indians
to State Legislatures, 771; Govlnd.
Ballabli Pant on importance;- .of
issue of, 746 ; guarantees for protec-
tion of, 749 : guarantee of religious
rights for Sikhs, 751; guarantee of
rights for, 753 ; linguistic, 800,;. memo-

randum of Sikh members of East
Punjab Assembly^ re. Sikh backward
classes and political and cultural
rights of Sikhs and Sikh minorities
outside East Punjab, 768-9; Minorities
Commission, 749; nomination of
Anglo-Indians to House of the People
and State Legislatures, 426, 763, 764,
775, 776, 780; political rights for,
827; 839; power of President and
Governors to nominate Anglo-Indians
to ^House of the People and State
Legislatures, 771; preferential treat-
ment in public appointmeDts, 777;
problem of, 741; proposals adopted at
meeting of Sikh Members .of East Pun-
jab Assembly and Constituent Assem-
bly re. Sikhs, 770; proposal for addi-
tional seats for Sikhs in East Punjab
Assembly, 770; proposal for appoint-
ment of special minority officer, 749,
759; proposal for reservation of seats
for Indian Christians, .in,- Madras .and
Bombay, 770; proposal for Sikh
representation in Centre and Provinces
other than East Punjab, 770; proposal
for treating Muslims, Christians,
Sikhs, Anglo-Indians and Parsis as
recognized minorities besides Schedu-
led Castes and Scheduled Tribes, 777;
protection accorded in Cripps propo-
sals, 745; protection court for, 753;
protection of, 741, 742, 743, 745, 746,
772; provision re. ten year period
for reservation of seats, 827, 829;
question of abolition of reserva-
tion of seats, 770-1, 772; question
of representation of Sikhs and
Muslims in public services, 778;
question of reservation in services,
758; question of safeguards in East
Punjab and West Bengal for, 769 ;
question of separate representation
of Muslims, 769; recommendations of
Fundamental Rights Advisory Com-
mitttee, 757-9; recruitment of Anglo-
Indians to certain services, 763; report
of Advisory Committee on 759-60;
representation in Cabinets, 748, 754,
756, 757, 758, 763, 765; representation
in services, 743, 753, 754, 756;
reservation of seats for Indian Chris-
tians, 426, 755;- reservation of -seats
for Muslims, ' ■ -Scheduled Castes,
Indian Christians, Parsis, Anglo-
Indians, Sikhs and Scheduled Tribes
in Parliament and State Legislatures,
445, 449, 753, 758, 763, 773-4, 776;
reservation of seats for Sikhs with
joint electorate, 768; reservation of
seats in House of the People, 764,
773; reservation of seats in State
Legislatures, 764, 773; right of Sikhs
to wear kirpans, 751; safeguards
demanded for Sikhs, 750, 767-8;

safeguards for, 32, 742, 754, 765-7;

8:80

FRAMING OF INDIA S CONSTITUTION

safeguards' for Anglo-Indians, 276-7,
751, 752; safeguards for Parsis, 752;
separate electorates in Communal
Award (of 1932) for Sikhs, Anglo-
Indians, Indian Christians and depres-
sed classes, 467, 741; special oihcer
for linguistic minorities, 800-1; special
provisions relating to, 451, 764;
special representation of Anglo-Indians
in certain services and protection of
grants to Anglo-Indian schools, 778;
special responsibility of Governors
regarding, 742-3; special treatment
for Anglo-Indians, 758; special
tribunal for communal issue, 753;
statutory commission for, 759; sub-
committee to consider position of
Sikhs’ rights in East Puniab and
reservation of seats in West Bengal,
766-7; sub-committee on special
treatment for Anglo-Indians, 758-9;
suggested commission for, 753; Tej
Bahadur Sapru’s attempt to settle
issue of, 57; uplift of aboriginal
population, 762

Minorities Sub-Committee, 177, 215,
273, 402, 747, 748, 750, 754, 756, 758,
759, 769; Chairman of, Mookher-
jee, H. C,; constitution of, 747-8;
issues for consideration before, 754;
on adult franchise, 471; on Council of
Ministers, 373; on cultural and
educational rights of minorities,
272-3; on directive principles of State
policy, 325-6; on Election Com-
mission, 461; on reservation of seats
for minorities, 755; on right to
freedom, 214-5; on right to freedom
of religion, 261; on right to vote,
460; on separate communal electo-
rates, 755; questionnaire issued by,
748; report of, 757, 769
Minto, Viceroy of India, 2, 466, 741
Miraj State, merger with Bombay,
554

Mirza Ismail, 520

Miscellaneous financial provisions,
664-5

Misimi Hills District, 590
Misra, Bansidhar, 103
Misra, Lokanath, 104, 198, 209, 210,
■ 266, 277, 439
Misra, Yudhisthir, 105, 581
Mitter, B. L., 114, 152, 369, 389, 390,
397, 483, 526, 601, 603, 613
Mitra, Dhiren, 154

Mizo District, 590; see also Lushai
Hills District
Mody, Homi, 752
Mohamed, K. A,, 105
Mohamed Tahir, 104," 190, 19 L 196,
197, 200, 358, 376, 403 ‘ '

Mohammad Hlfzur Rahman, 103
Molesworth, ■ General,', on Japanese
threat to India, ' 35-6
Money Bills,' in ■ ' Parliament, 450;

in State Legislatures, 450; President
to assent to Money Bills as approved
by House of the People, 450
Monroe Doctrine, 56
Montagu, Edwin, 4, 5, 7, 19, 516, 593,
741

Montagu-Chelmsford Reforms, 5, 171,
467, 474, 480, 516, 570, 592, 724
Mookerjee, Syama P:rasad, 214, 261,
356, 369, 461, 753, 792, 806, 824,

838

Mookherjee, H. C., 97, 102, 748, 838
Morgan, J. H., 20; on safeguards in.
Government of India Act re. Princely
States, 20
Morley, 2, 5, 741
Moriey-Minto Reforms, 2, 474
Morvi State, 556

Motiial Nehru .Committee, on com-
munal representation, 13; on .Indian
States, 13; .recommendations o.f, 13-4
Mountbatten, Viceroy of India, 86, 88,
107, 131; address of August 15, 1947,
530-1

Mountbatten Plan, 90
Mudaliar, A. Ramaswami, 389, 520,' 612
Muddiman Committee, see Indian
Refo,rms Enquiry Committee
Mudhoi State, merger with Bonibav,
554

.Muhammad Abdulla, Sheikh, 104
Muhammadgarh State, 557
Muhammad Ismail Sahib. 102, 198,
199, 225, 266, 269, 332;" 403, 773
Muhammad Saadulla, 97, 104, 114, 565,
680, 681, 772, 773
Muli State, 556
Munavalli, B. N., 105
Munshi, K. M., 77, 97, 102, 107, .109,
113, 114, 127, 150, 152, 153, 176, 179,

181, 182, 184, 185, 186, IS7, 192, 193,

194, 195, 197, 198, 199, 200, 202, 211,

214, 215, 216, 221, 222, 223. 225, 226,

228, 231, 235, 236, 237, 249, 250, 253,

257, 258, 262, 263, 264, 267, 272, 273,

274, 281, 28.2, 289, 296, 298, 302, 303.

305, 312, 321, 322, 325, 332, 337, 343,

344, 362, 382, 389, 411, 422, 44K. 460,

465, 466, 4'S3, 493, 498. 501, 52 L 541,

542, 549, 582, 597, 599, 600, 601, 605,
60S, 634, 642, 648, 649, 661, 699, 720.
748, 756, 760, 766, 778, 779, 784, 787,

793, 794, 798, 799, 805, 809, 822. 826,
839, 841

Muns'hi-Awangar formula on language.

794, 841

Munshi, Pranlal ThakurlaL 105
Musafir, GianI Gurmukfi Singli, 103,

Muslims, see Minorities
Muslim League, I, 3, 21, 22, 23. 24, 25,
26, 28-9, 31, 33, 34, 42, 51,' 53. 54,
55, ,56, 57, 58, 60, 61. 63, 65, 66,

. 67, 70, 71, 74, 75, 76, 77, 78, 79. 80,
81, 85, 86, 87, 88, 89, 90. 91, 96, 97,
.'98, .107, 108, 109; 110, 120. 121, 123,

INDEX

881

124 125, 134 137, 365, 46S, 594 597,
603, 604, 607, 743, 744, 745, 746, 747,
750, 754, 757, 760, 768: attitude

towards Congress demand for con-
stitutional reform, 28-9; attitude
towards expanded Executive Council,
37: conditional acceptance of Cabinet
Mission’s plan, 71; decision to join
interim Government on certain con-
ditions, 72; demands of, 25; demand
for Pakistan, 382; direct action resorted
to, 73; ’Islam in danger”, 24; political
implications of abstention from
Constituent Assembly, 77-9; protest
against Objectives Resolution, 80;
reaction on announcement of list of
Executive Councillors, 71-2; resolu-
tion re. Pakistan, 32, 65, 71; stand
on Constituent Assembly, 81; with-
draws acceptance of Cabinet Mission
plan, 73

Muslim League Council, 108

Muslim League Working Committee,
98.

Mussolini, Benito, 803

Mysore State, 99, 100, 101, 146, 147,442,
520. 539, 541, 542, 543, 545, 547, 551,
559, 567, 612, 668, 694; Constituent
Assembly in, 541; Maharaja of, 133,
543,' 547; Members of Constituent
Assembly from, 104; Premier of, see
Reddv, "K. C.; second chamber in,
457

Nabha State, 557

Nagappa, S., 102, 190, 203, 204, 256,
760

Naga Hills District, 583, 589, 590
Naga Hiils-Tuensaiig Area, 590; see
also Naga Tribal Area
Naga Hills-Tuensang Area Act (1957),

590

Naga Tribal Area, 590; see also Naga
Hills-Tuensang Area
Niigafand, 147, 590, .591
Nagas, 586, 590
Nagod State, 556
Nagpur High Court, 714
Naigawan-Rebai State, 556
Nalagarh State, 557

Nalavadc, Ramchandra Manoliar,
102 ' ^
Nandgaon Slate, merger with Central
Provinces and Berar, 554
Hand LaL 103
Haoroji, Dadabhai, 2
Narsingarh State, 557 . , ^ .

Narsiiigpur State, merger with Orissa,
554

National Academy, suggested cstablish-

menl of, 785

National Convention, 8, 23, 26, 172
National Flag of India, 743 _

National Government, 40, 41, 42, 4/,
55. 58; Congress offer of cooperation

in prosecution of war through, 31;
failure to establish, 56
National Industrial Recovery Act
(1933) of U.S.A., 821
National Language Convention, conven-
ed at New Delhi, 791
Nationalist Party, 61
Nawanagar State, 556; Maharaja of,
519-20

Nayagarh State, merger with Orissa,
854

Nazis, 30, 42

Naziraddin Ahmad, 102, 205, 210, 230,
231, 294, 295, 308, 309, 311, 378, 410,
411, 493, 637, 643, 706, 730, 738, 799,
831

Negotiating Committee, 98-9, 145; see
also Chamber of Princes
Nehru Committee, appointed by All-
Parties Conference, 175; on Supreme
Court, 480

Nehru, lawaharlal, 15, 19, 23, 24, 25,
26, 30, 41, 42, 43, 44, 45, 47, 48,
62, 63, 64, 73, 74, 76, 77, 79, 81,
82, 87, 90, 91, 103, 107, 108, 114, 119,
120, 121, 122, 123, 124, 126, 127, 141,
156, 164, 166, 216, 289, 290, 291, 292,
293, 296, 298, 340, 345, 346, 350, 353, '
395, 520, 521, 522, 523, 524. 525, 566,
597, 600, 601, 633, 635, 746, 766, 772,
781, 782, 783, 794, 797, 839; discus-
sion with Johnson, 38; invited by
Viceroy to form provisional Govern-
ment, 74; message to Roosevelt, 43;
moves Objectives Resolution in
Constituent Assembly, 79-80; on
abolition of salt duty, 676-7; on adult
franchise, 470; on communal electo-
rate, 467; on composition of second
chamber, 453; on grouping of
Provinces, 73, 75; on Indian States,
520; on language issue, 789; on
powers of Centre vis-a^vis States,
599; talk with Gandhi re. constitu-
tional reforms, 44, 45; views on
Constituent Assembly, 63*4
Nehru, Motilal, 8, 9, 10, 11, 12, 13,
15, 19; suggestions re. Round Table
Conference, 11, 15

Neogv, K. C„ 102, 669, 670 . ^

New Delhi, 1, 21, 35, 561, 566; National
Language Convention at, 791
New Zealand, 126, 150
Nichols-Roy, J. J. M., 104, 215, ^16,
668, 679, 680, 681
Niialingappa, S., 102
Niligiri State, merger with Orissa, 554
Non-Parties’ Conference, 57, 58; re-
commendations of Standing Com-
mittee of, 58-9 £ a Ai

Non-violent non-cooperation, 6, 8, 41,

North Cachar Hills, 589
North Cachar Sub-Division of Cachar
District, 583 . . .

North-East Frontier Tract, 589

882

FRAMING OF INDIA’S CONSTITUTION

North-East Frontier (Assam) Tribal
and Excluded Areas Sub-Committee,
on higher quantum of representation
to State Legislature, 449;^ report on
aboriginals and tribals in Assam,
761-4

North Eastern India, threat of air
attacks on, 35

Northern Ireland, 482,499

North-West Frontier Province, 23, 57,
68, 69, 70, 73, 88, 89, 95, 96, 99,
127, 133, 136, 139, 473, 571, 572, 573,
747, 751; becomes part of Pakistan,
573; Congress Ministry in, 63;
referendum in, 573

Notes on Constitutional Precedents, by
B. N. Rau, 595

Numerals, Devanagari numerals, 796;
divided opinion, re. use of, 793;
Indian numerals, 798, 799; interna-
tional numerals, 792, 794, 796,

798, 799; power of Parliament to
legislate on the form of, 798; see
also Arabic Numerals

“Oath of the Tennis Court”, 124
Objectives Resolution, 79-80, 86, 108,
109, 112, 120-1, 124, 127, 128, 134,
175, 520, 521, 523, 597, 746, 837,^839;
features of, 79-80; idea of republic of
India in, 597; moved by Jawaharlal
Nehru in Constituent Assembly, 79-80;
Muslim League's attitude towards,
80; Preamble of the Constitution to
be based on, 127-8; text of, 121-2
Orchha State, 556

Order of Business Committee, 109, 110,
111, 112, 113; recommendations of,
110-1

Ordinances, approval by Constituent
Assembly of proposals regarding,
475-8; approval by Union Constitution
Committee of proposals regarding,
475; cessation of operation after six
weeks of reassembly of Parliament,
475; Governor’s powers re. promulga-
tion of, 474-5, 478-9; Governors to
obtain instructions of President in
certain cases before promulgation of,
479; power of Governor-General to
promulgate, 473, 474-5; power of
Parliament to disapprove of, 475;
President’s power to promulgate, 813;
promulgation by Reading abolishing
import duty on cotton, 475; promulga-
tion of Extra-Provincial Jurisdiction
Ordinance, to enable Government of
India to exercise ipowers of adminis-
tration over Indian States, 531-2;
•quantum of responsibility of President
under mew Constitution for promulga-
;,tion-''of, 475;.,questi'Oii of length of
time :during which' an Ordinance
•'would, remain' in force, ,476; question

of promulgation by P,resiclent and
Governors, 475-6; special provisions
re. Ordinances promulgated by Gov-
ernors, 479; to be approved by
Parliament, 475, 476
Orissa, 21, 68, 94, 96, 100, 137, 146,
147, 276, 401, 496, 538, 543, 544, 570,
573, 576, 577, 578, 582, 656, 657, 660,
668, 677, 678, 679, 684, 689, 690, 691,
752, 765; criticism of provisions re.
Indian States in Draft Constitution,
536-7; members of Constituent
Assembly • from, 104; merger of
Princely States in, 533, 554-5, 563-4;
primitive and tribal populations in,
569, Premier of, see Mahatab,
Harekrushna
Orissa High Court, 496
Orissa States, 101, 538, 581; members
of Constituent Assembly from, 105

Pacific Council, 39
Pahara State, 556

Pakistan, 1, 3, 21, 22, 28, 32, 42, 54,
56, 58, 66, 87, 9L 99, 112, 120, 127,
136, 137, 138, 139, 147, 155, 157-8,
160, 164, 165-6, 267, 273, 274, 296,
468, 531, 559, 586, 711, 744, 745, 774,
778, British Baluchistan becomes part
of, 573; Cabinet Mission’s views on,
66; consequences of demand for, 382;
demand by Muslim League for, 42,
65; inhiix of refugees to Delhi from,
566; Jinnah’s conception cf, 56;
North-West Frontier Province becomes
part of, 573; question of citizenship
for persons , originating in, 163-4, 165,
166; Rajagopaiacliari’s aftiCude
towards, 42; resolution of Muslim
League on,. 65, 71, 744; territories of,
65

Pal Lahara State, merger with Orissa. 554
Palanpur State, merger with Bombay, 555
Paideo (Nayagaom) State, 556
Palitana State, 556

Panikkar, K. M., 185, 193, 194. 195,
202, 203, 206, 214, 235, 285, 315, 356,
360, 422, 520, 606, 700, 785, 806, 824,
826

Panna State, 556

Pant, Govind Ballabh, 25, 103, 234, 252,
.273, 279, 284, 285, 289, 296, 297, 389.
456, 462, 633, 634, 635, 669, 6^ 67 L
. 688, 690, 746, 747, 760, 791, 792, 805,

812

Pant, Hargovind, 103
Panth Piploda, 137. 139, 558, 560;

geographical situation and political
administration of, 558; meruer with
Madhva Bharat, 545, 546, 567
Paragi Lai, 103
Paris, 124

Parliament of India, 142, 143 144, 145,
•148, 156, 160, 165, 197, 200, 204, 210,

INDEX

883

218, 236, 238, 241, 244, 246, 247, 248,

292, 305, 307, 313, 346, 347, 348, 352,

354, 356, 357, 358, 359, 362, 364, 365,

371, 373, 374, 425, 429, 449, 450, 486,

488, 492, 551, 553, 566, 581, 587, 614,

615, 616, 617, 618, 619, 623, 630, 645,

666, 671, 676, 678, 679, 680, 681, 685,

686, 687, 688, 691, 692, 693, 694, 695,

696 , 703, 704, 712, 714, 792, 813, 817,

818, 819, 821, 825, 826, 828, 830, 831;

Act not to be invalid after receiving
assent on ground that recommendation
required by Constitution not given,
620 ; adult suffrage as basis for elec-
tions to, 459; approval of President’s
proclamation of emergency, 810, 815;
approval of President’s proclamation
of financial emergency, 820; cessation
of operation of Ordinances after six
weeks of reassembly of, 475; demands
for grants, 428; difference between
powers of two Houses, 450; disquali-
fication of members of, 427, 430-1;
duration during emergency, 436, 437;
elections to, 426-7; electoral roll for,
459; estimated receipts and expenditure
to be laid before both blouses of,
441; financial procedure in 428, 441;
freedom of speech in, 438; immunity
from proceedings in any court for
reports published under authority of,
439; inconsistencies between Parlia-
mentary laws and State laws, 620;
Indian States to maintain armed
forces til! Parliament by law provides
otherwise, 648-9; joint sitting of
Houses of, 427; language of Bills,
etc., in, 793: language to be used in,
442, 785, 786, 787, 789; laying of
proclamation of emergency before,
808, 809, 810: laying of regulations
re. exclusion of matters from purview
of Public Service Commission before.
736; laying of report of special
officer for linguistic minorities before,
80!: legislative powers during emer-
gency, 809; legislative procedure in,
427; legislature before independence,
418-20;" Money Bills in. 427-8, 450;
nomination of Anglo-Indians to, 763;
Ordinances to be laid before, , 475,
476: Parliamentary Act on State
subject can be amended or repealed
nv Act of Parliament, 619; plea for
change of name to “Indian National
Congress”, 431; power during
emergenev, 810, 813; powers during
failure of constitutional machinery m
States. 812; power for establishment:
of local legislatures in Chief Com-
missioners' Provinces, 559; power .of
President vis-a-vh Parliament re.
Finance Commission, 683; power to
disapprove Ordinance, 475; power to
impose tax other than stamp duties-
on transactions in stock exchanges

and futures markets and on sale or
purchase of newspapers and on
advertisements therein, 674; power to
legislate on form of numerals, 798;
power to legislate on sharing with
States of proceeds of Union duties
of excise other than those on medi-
cinal and toilet preparations, 677;
power to legislate on State subjects,
626-7; power to legislate on State
subjects during emergency, 614-5, 619;
power to legislate with respect to
any matter in State List in national
interest, 618, 619; power to make
laws for the whole or any part of
India, 614; power to make laws
regarding Chief Election Com-
missioner and Election Commissions,
466; power to make laws relating to
matters concerning elections, 431, 459;
President to assent to Bill returned
by him to Parliament if passed again
by it, 439; privileges and immunities
of members, 438-9; procedure re.
Appropriation Acts, 441-2; prohibi-
tion of simultaneous membership of
a House of Parliament and a House
of State Legislature, 490; proposal
for change of name to National
Assembly, 423; proposals in B. N.
Rau’s memorandum regarding, 420-1;
proposals re. representation of Indian
vStates in, 431-2, 433-4; proposed
power, re. legislative lists, 617; pro-
posed rules of procedure and conduct
of business in, 421; qualifications of
members of, 436; question re. election
expenses of candidates, 439-40; re-
commendations of Finance Commis-
sion to be laid before, 664; represen-
tation of Provinces and Indian States
in, 424; reservation of seats for
minorities. Scheduled Castes and
Scheduled Tribes, 426, 430, 763;
restrictions on power to legislate for
Indian States, 618; right of Attorney-
General to address either House of,
427; separate Secretariat staff for
each House of, 438; sessions of,
436-7, 439; summoning of, 444; to
approve of Ordinances, 476; to legis-
late on representation from States
without legislature, 430; to make laws
on all matters to give effect to
treaties and international agreements,
605-6, 632; to make laws on State
subjects on declaration by Council
of States by resolution that it is
expedient in national interest to do
so, 615-6, 619; to provide by law for
adjudication of Inter-State water
disputes, 648, to provide by law
for use of Hindi or English for
one or more official purposes, 790;
Union Constitution Committee on,
422 ■ ■ ■

FRAMING OF INDIA’S CONSTITUTION

S84

Cmmcil of States, 625, 626, 627;
abaadonmeiit of principie of fimc-
tional represeiilatbfl in respect of,
453: alioGation of scats for Indian
States in, 431-2; allocation of seats
in, 433-4, 443; ChalnBan to commn-
■ nicate resignation of President to
Speaker of House of the People, 349;
composition of, 424, 425, 429, 432,
434; duration of, 427, 429; nomina-
tion of members by President to,
429-30, 432, Parliament to make
laws on Stale subjects on its declara-
tion by resolution that it is expedient
In national interest to do so, 615-6,
619; power re. Money Bills, 450;

. power to legislate on State subjects,
630-1; procedure re. removal of
Chairman or Deputy Chairman,
437-S: procedure to fill elected seats
in, 434; proposal re. representation
in, 431, representation of States in,
429; resolution for creation of All-
India Services, 719, 720
Mouse of the People, 358, 380, 813;
Chairman of Council of States to
communicate resignation of President
to Speaker of, 349; composition of,
424, 425, 434-5; demands for grants,
428, 441; draft provisions regarding,
426: duration during emergency, 436,
437; duration of, 427, 429, 430, 436;
elections to, 835; elections to be on
basis of adult franchise, 471;
power of President to nominate
Anglo-Indians to, 764, 771. 775, 780:
powers re. Money Bills, 450; President
to assent to Money Bills as approved
by, 450; presiding officers of, 427,
procedure re. removal of Speaker or
Deputy Speaker, 437, representation
in, 444; reservation of seats for
minorities, 764, 774, 776; reservation
of seats for Scheduled Castes and
Scheduled Tribes, 764, 774, 780;
Speaker and Deputy Speaker of,
359, 427; vote on account, 441-2;
voting of demands for grants, 440
Parliamentary Committee, proposal for
appointment for consideration of
report of Language Commission and
for submission of its report to
Pr^ident, 793
Parmar, y, S„ 106
Par sis, Minorities

Fartabgarh State, 557
Fataskar, Hari Vinayak, 102, 241, 243,
.463, 464, 465, 631

PataudI . State, merger with East
Punjab, 555
Patdi State, 556

Patel, Vallabhbhai J., 102, 130, 152,
153, 186, 194, 195, 203, 206,’ 207,
215, 216, 217, 252, 261, 263, 273,
275, 286, 298, 305, 316, 325, 330, 388,
}9i, 438, 497, 498, 521, 523, 551, 682,

715, 716, 721, 722, 723, 727, 748, 759,
760, 761, 766, 768, 769, 771, 772, 773,
777, 778, 785, 786, 804, 806, 839, 841);
guarantee to and apprec.iatien of
services, 721-3; on joint electorates,
468-9; Minister in charge of States
Department, 529, 530; on progress
of integration of Indian States, 551-2;
views on communal representation, 469
Patel, Vithaibhai, 438
Pathari State, 557
Pati, Lai Mohan, 106
Patiala and East Punjab States .Union,
101, 442, 539, 542, 545, 547. 557,
770; formation of, 533; members of
the Constituent Assemb,lv from, 105
Patiala State, 99, 140, 520, 526, 557;

Maharaja of, 519-20, 525
Patil, S, K., 102, 540
Patna High Court, 160; jiiiisdiclion
over Orissa, 496

Patna State, merger with Orissa, 554
Pattabhi Sitaramayya Committee, see
Committee on Chief Commissioners'
Provinces

Pattani, A, P., 390
Peace Conference, 7, 49, 52, 59
People’s Commissariats (in Russia),
83

Permanent settlement, abolition of. 2!
Persia, 164

Pethick-Lawrence, vSecretary of State
for India, 77, 528; member of Cabinet
Mission to India, 64; on Indian
States and transfer of power, 526-7
Phaltan State, merger with Bombay, 554
Phillips, William, President Roosevelt's
envoy, 48-5!

Piilai, A. Thanu, 105
Piilai, P, S, Natarajan, 105, 694
Pillai, V. I. Muniswamy, 205
Filial, V. Nadimuthu, 102
Piploda State, 557
Piatel, R. E, 102

Pocker Sahib, B., 102, 377., 468, 469,
476, 492, 500, 760
Poland, Hitler’s attack on, 27
Policy Committee on Agriculture,
Forestry and Fisheries, recommenda-
tion of its Prices Sub-Commiltec re.
setting up of All-India Agriciiltiiral
Prices Council, 608
Polish Constitution, 273
Polish Treaty, 273
Pondicherry, 147, 164, 568
Peona Pact. 467
Poonacha, C M., 104, 560, 562
Porbandar State, 556
Potai, Ramprasad, 105 ■'

Power of pardon, 398; historical back-
ground, 367-8; Joint Select Committee
(1933-34) on, 368; Union CoiKlitiition
Committee's recommendations regard-
. ing, 369

Praja Party, 21, 22
P.rakasam, T., 102 :

wmx

Prater, S. H., 102, 751, 752
Preaimbie of the Constitutioii, adoption
of, 132; to be based on Objectives
Resolution, 127-8
Prerogative writs, 706
President of India, 341, 343, 348, 350,
352, 353, 402, 687; advisory reference
to Supreme Court by, 490; assent
required for State Jaws relating to
compulsory acquisition of property,
291, 295, 297, 300; assent required to
State laws imposing taxes on water or
electricity consumed, distributed or
sold by inter-state river or river
vaiiey authorities, 692; assent
required to State laws imposing tax
on essential commodities, 693;
conditions for office of, 352-3;
declaration of emergency by, 808;
declaration of financial emergency by,
830-1; ^ delegation of law-making
authority during emergency to, 813,
815; election of, 832, 835; eligibility
for re-election, 345-50; emergency
powers of, 803-4, 806-7, 808, 809,

812-3, 816; Governors of States to
reserve Bill impairing position of High

Courts for consideration of, 457;

liistoiicai background . of decision of
Constituent Assembly re. President
and Union Executive, 334; impeach-
ment of, 353-5; power in respect of
administration of Chief Commis-
sioners’ Provinces, 559; power of
assent to Bills passed by both
Houses of Parliament, 427, 428;

power of pardon, 398; power re.
failure of constitutional machinery in
States, 815; power re. Scheduled
Areas, 581; power to allocate grants
to States, 680- i; power to appoint
Governors, 391-2, 395, 828; power to
appoint judges of Supreme Court, 485,
486; power to appoint special officer
for linguistic minorities, 800-1; power
to hold census within three years from
commencement of Constitution, 455-6;
power to issue directions re. language,
800; power to issue order for use ^ of
Hindi along with English for specific
purposes, 792; power to issue
procUioiation of emergency, 811, 814;
power to make changes in First and
Fourth Schedules to Constitution,
546; ptwer to make order in respect
of persons under preventive detention,
246; power to make regulations
excluding any matter from purview of
Public Service Commission, J28,
729; power to modify or termjnate
agreement re. tax or duty on inter-
state trade and commerce, 705;
power to modify or terminate
financial agreements with States, 682,
power to nominate Anglo-Indian
members to House of the People,

426, 764, 771, 775; power to nominate
members to Council of States, 423,
429, 432; power to promulgate-

Ordinance, 475;6, 806, 813, 814, 816;
power to provide special responsi-
bilities for Governor of Bombay, 406;
power to remove difficulties in Consti-
tution during transitianal period, 827;
power to remove Supreme Court
judges, 486; power to set up regional
committees, 406-7; power to specify
Scheduled Castes and Scheduled
Tribes, 779; power to summon Parlia-
ment, 444; power to suspend right to
constitutional remedies during emer-
gency, 307, 308, 309, 310, 810, 818;
powers vis-a-vis Parliament regarding
Finance Commission, 683; procedure
for election of, 343-9 ; procedure for
resignation by, 349; proclamation of
emergency by, 806; proposal for
empowering him to extend term of
House of the People during an-^
emergency, 436; proposed conferment
of certain special powers on, 338;
proposed Council of State to advise,
338-9; proposed electoral college for
election of, 344-5; proposed powers to
modify or terminate any agreement
re. distribution of proceeds of
duties and taxes, 664, 665; proposed
power to suspend or vary financial
provisions relating to distribution of
revenues, etc. in times of emergency,
661; qualifications for election as,
350-2; quantum of responsibility for
promulgation of Ordinance, 475;
report of Governors re. emergency
to, 804, 805, 807; report of Parliamen-
tary Committee on language to be
submitted to, 793; reservation of Bills
for consideration of, 405; reservation
during emergency of Money Bills
passed by State Legislatures for
consideration of, 820; special officer
on linguistic minorities to report to.
800-1; supreme command of defence
forces to vest in, 360-1; term of office
of, 349, 429; time of holding election
to fill vacancy in office of,. 355-6; to
address members of both Houses of
Parliament, 444; to appoint Finance
Commission, 664; to assent to Bill
returned by him if passed again by
Parliament, 439; to assent to Money
Bills as approved by House of the
People, 450; to establish Inter-State
Council to secure coordination
between States, 646-7
Preventive detention, 242, 243, 244, 246,
247, 248; Advisory Board on, 241,
242, 244, 246, 247, 248; temporary and
transitional provision regarding, 246
Prices Sub-Committee of Policy
Committee on Agriculture, Foresty
and Fisheries, recommends settmg up

886

FRAMING OF INDIA’S CONSTITUTION

of Ali-lBdia Agricultural Prices
Couucii, 608

Prime Mmister of Britain, see Attlee,
Clement; Baldwin, Stanley; Churchill,
Winston; Lloyd George, David;
MacDonald, Ramsay
Princely States, 1, 5, 9, 14, 19, 20, 26,
67, 255, 647, 648, 649, 651, 655, 662,
811; ato Indian States
Privy Council, 399, 481, 483, 484, 485,
487, 495, 496; abolition of jurisdiction
of, 495

Privy purses, payment to Rulers of
Indian States, 682
Proclamation of emergency, 619
Prohibition, writ of, 310, 505
Protocols providing for supression of
traffic in Women and Children (1921),
138

Provincial Congress Committees,
proceedings to be conducted in
regional languages, 782
Provincial Constitution Committee, 112,
113, 116, 127, 154, 156, 162, 384, 385,
386, 389, 391, 409, 414, 478, 497, 498,
501, 559, 560, 642, 726, 727, 786, 787,
805, 806, 826* joint sitting with Union
Constitution Committee, 386, 607,

608-9; memorandum on Governors,
399-400; on Centre’s power to
regulate broadcasting, 610 ; on
emergency powers for Governors,
804-5; on High Courts, 497; on
functions of Governors of Provinces,
386; on Governors and State
executive, 386-7, 388; on Indian

States, 534-5; on Legislative Councils,
449; on State Legislatures, 446-8; on
superintendence, direction and control
of elections, 463; sub-committee on
question of electoral college for
election of Governor, 387; recom-
mendation of sub-committee set up
jointly with Union Constitution
Committee re. Indian States, 607, 609
Provisional National Government, 31,
52, 54

Public Accounts Committee, 412
Public Service Commission, 508, 720,
724, 727, 728, 749; annual reports
of, 729-30, 739-40; appointment and
functions, 725, 726; appointments of
Chairman and members of, 727, 729;
casual vacancy of Chairman of,
740; composition of, 731; conditions
of service of Chairman and members
of, 727, 729; conference of Chairmen
of, 731, 735, 739; eligibility for
; holding ■ office after ceasing ' to be
members of, 733-4; exclusion . of
subjects from purview of, . 729;

expenses to be charged on Consoli-
dated Fund, .728, 739; Federal, 725,
726, 727, 735,. 740; for States, 405,

■ 507,.' 725; 726,: 727; . functions ..'of,
727^8, '■ 735, 736, 738-9; '.historical

background, 724-6; in Madras, 725;
independence of, 739; joint Com-
mission for two or more States, 726,

727, 734; laying of regulations re.

exclusion of matters from purview
of Public Service Commissions
before Parliament and State Legisla-
tures, 736; .M:inistry of Home Alfairs
on, 730, 731, 732, 736; Ministry of
Law on, 730, 732; power of

Governors to make regulations cxciu-
ding any matter from purview of,

728, 729; power of President to

mahe regulations excluding any
matter from purview of, 728, 729, 736;
regulations for services to be made
in consultation with, 735; removal of
members of, 729, 732-3; reservations
for Scheduled Castes, etc. excluded
from jurisdiction of, 737-8; setting up
of joint commissions for two or more
States, 730-1; Special Committee on,
728, 729; suggestions of the

conference of Chairmen of Public
Service Commissions, 729-30; sus-
pension of members of, 732-3;
temporary and transitional provisions
regarding, 740; term of office of
members of, 731-2; vacation of office
by members of, 733

Pudukkottai State, merger with Madras,
554

Punjab, 6, 21, 22, 56, 68, 69, 70, 73, 87,
88, 89, 91, 94, 95, 96, 99, 107, 127,
146, 147, 194, 406, 473, 544, 569, 570,
571, 573, 579, 740, 747, 750, 751, 768,
778; Delhi separated from, 558;
Jinnah on partition of, 87-8, 89, 91;
second chamber in, 457; Unionist
Ministry breaks with Muslim League,
63; see also East .Punjab

Punjab Hill States, 555

Punjab Reorganization. Act, 1966, 147,
407

Quetta, 90; miinidpalities of, 573
Quit India movement, 51. 242
Quo warranto, writ of, 303, 505

Radcliffe Commission, award of, 99,
760

Radhakrishnao, S., 97,. 108, 125. '263,
264, 830

Radhanpur State., 'merger wj.th Bomba.V'.,

555

Raghib Ahsan, 102
Raghunandan Prasad, 104
Raghu Vira, 104, 798. 799
Rai, Yashwant, 103; 738
Raigarh State, merger with G'eii.tra..l
Provinces and Bcrar. 554
Railways, 636-7, 743, 751
Rairakhol State, merger with Orissa, 554

imm

887

Raj Baliador, 105, 255
Raj Kan war, 105, 642'

Rajagopaiaciiari, C., ' 26, 38, 41, 42,
51, 53, 57, 151, 153, 185, 194, 203,
206, 214, 215, 228, 235, 252, 261, 262,
284, ^461, 462, 700; attempt to end
political deadlock, 53-54; concedes
principle of Pakistan, 42; formula
for understanding with Muslim ■
League, ^ 54, 55; on failure of
Cripps Mission, 41; on partition of
India, 54

Rajasilian, 101, 146, 147, 442, 539,
542, 545, 546, 547, 557, 794; forma-
tion of, 533; members of the Consti-
iiieiit Assembly from, 105
.Rajendra Prasad, President of Consti-
tuent Assembly, 82, 83, 84, 86, 87,
104, 108, 114, 122, 125, 130, 131, 152,
164, 207, 253, 254, 394, 501, 714, 747,
759, 766, 770, 783, 788, 795, 800, 838,
840, 841; on abolition of salt duty,
676; B. N. Rau’s discussion on
procedure in Constituent Assembly
with, 83-4; views on use of English
and Hindi in Constituent Assembly,
7S8

Rajgarh State, 557
Rajkot State, 556

Rujpipia State, merger with Bombay,

555

Rajpramukhs, 100, 351, 533, 543, 547;
payment of allowances and provision
of amenities, 547-8
Rajputana, 558; see also Rajasthan
Rajputaiia States, 565
Raju, P. L. Narasimha, 102
Ram Sahai, 105, 542
Ramaiah, V., 105
Rumdasias, 751, 768, 770, 111
Ramdurg State, merger with Bombay,
554

Rampur State, 140, 545, 567; merger
wiih United Provinces (Uttar
Pradesh), 545, 555, 567
Rampur State, merger with Orissa,

554

Ruoga, N. G., 102, 309, 629
Rangachari, M. V., 656
Rangachariar, T., 9
Rao, Kala Venkata, 295, 298
Kuo, M. 'i'hiruniaki, 102
Rao, S. V. Krishnamoorlhy, 104, 196,
204, 276. 277

Rao, V. ih Kesava, 101, 286
Raliam Suite, 557

Rail, hi N., 38, 63, 76. 77, 82, 83, 84,.
85, 86, 115, 127, 128, 129, 134, .135,
137, 138, 145, 154, 155, 156, 157,: 158,

159, 160, 16!, 162, 164, 175, 176, 177,

180, 181, 187. 188, 189, 195, 196, 202,

203, 204, 207, 209, 212, 217, 218, 219,

220, 229, 232, 233, 235, 254, 258, 259,

260, 264, 266, 275, 276, 283, 284, 286,

2S8, 306, 307, 308, 316, 326, 327, 328,

329, 337, 339, 343, 346, 349, 350, 353,

354, 356, 357, 360, 361, 362, 363, 367,
368, 371, 372, 374, 382, 383; 384, 386,
387, 391, 409, 415, 420, 421, 425, 428,
429, 430, 436, 440, 445, 447, 449, 451,
469, 475, 478, 479, 483, 497, 498, 499,
504, 508, 534, 535, 541, 559, 562, 595,
596, 607, 614, 616, 617, 618, 619, 620,
625, 626, 641, 643, 644, 645, 652, 655,
656, 660, 661, 662, 663, 664, 665, 667,
669, 699, 701, 702, 712, 714, 717, 727,
728, 730, 735, 736, 739, 761, 763, 784,
785, 786, 787, 806, 808, 809, 811, 824,
825, 826, 827, 828; analysis of content
and scope of Union subjects and
Union’s power to raise finances in
Constitutional Precedents, 595-7; dis-
cussion with Rajendra Prasad re.
procedure in Constituent Assembly,
83-4; discussion during visit to U.S.A.,
Canada, Ireland and United Kingdom
regarding amendment of Constitution,
827; discussions with President
Truman and President de Valera,
428-9; explanatory note on report on
fundamental rights, 184; memorandum
on Constitution, 85; on abolition of
titles, 207, 208; on admission or
establishment of new States, 142-4;
on Advocates General, 408-9; on
article 3 of the Constitution, 143-4;
on Auditor General, 414; on Cabinet
Mission’s plan, 82-3; on Centre’s
powers to legislate on State subjects,
615-6; on Centre-State relations, 606;
on Chief Commissioners’ Provinces,
559; on citizenship, 150; on conditions
of office of President, 352-3; on Cons-
tituent Assembly, 76-7; on defence,
600; on Election Commission, 464; on
equality of employment opportunity,
192; on fundamental rights, 320-1;
on High Courts, 497; on jurisdic-
tional powers of Indian States, 528;
on office of Vice-President, 356-7;
on Parliamentary form of Govern-
ment, 420-1; on procedure for amend-
ment of Constitution, 825; on proce-
dure in Constituent Assembly, 83-4;
on Provincial Constitution, 382, 699;
on retiring age of judges of High
Courts, 500; on second chambers in
States, 451; on States Negotiating
Committee, 522; on superintendence,
direction and control of elections,
462-3; on Supreme Court, 485, 487; on
trade and commerce, 701; on Union
Constitution, 134-6, 142-3, 145, 155,
806; questionnaire on Constitution, 85,
111-2; Report on Human Rights,
171; Sapru’s letter to, 56-7; visits
to U.S.A., Ireland and Britain to
study working of the Constitution,
428

Rau, N. Madhava, 97, 105, 114
Ray, Mrs. Renuka, 102, 263, 264, 293,
294

888

FRAMING OF INDIANS CONSTITUTION

Reading, Viceroy of India, 14; letter
to Nizam re. interpretation of
treaties with Princely States, 14;
promulgation of Ordinance
abolishing import duty on cotton
by, 475

Reciprocity Act fl943), 149
Reddi, C. Perumalswami, 102
Reddi, N. Sanjiva, 102
Reddiar, O. P- Ramaswami, 102
Reddy, B. Gopala, 666, 670
Reddy, H. R. Gurav, 104
Reddy, K. C, 104, 346, 633
Redmond, 767
Referendum, 824, 825, 831
Reforms Commissioner, see Menon,
V. P.

Reforms (of 1919), see Government
of India Act, 1919

Regional Committees, to be set up
by order of President, 406-7
Regional Councils for Tribal and
Excluded Areas, 225, 583-6
Regional Councils in tribal districts
of Assam, 449
Regulating Act (1773), 592
Renga Rao, Raja Swetachalapalhi
Ramakrishna, Raja of Bobbili, 102
Representation of the People Act
(1952), 472

Reserve Bank of India, 404, 603
Rewa State, 99, 526, 556
Roosevelt, President, 38, 43, 46-7, 48,
50, 233, 350, 821
Rotary Club of Delhi, 35
Round Table Conference, 9, 10, 11,
15, 17, 18, 19, 173, 480, 593,

725, 742

Rowell-Sirois Report (Canada), 365
Roy, Bhagwant, 105

Royal Commission, proposed
appointment for revising Government
of India Act (1919), 9
Royal Commission on Superi.jr
Services in India (1924), 724, 725;

■ recommendation re. Public Service
Commission, 724-5

Rules Committee of Constituent
■ ■Assembly, 783, 784
.Rules Committee, Chairman, of, see
.. Rajendra Prasad; decision re. lan-
■".guage to be used in Constituent
Assembly, 783-4
Russian Constitution, 83
Ruthnaswamy, M., 206, 261, 273. 753

Sachin State, merger with Bombay,
555

Sahay, Jadubans, 103
Sahay, Krishna Balia bh, 104
Sahaya, Syamanandan, 104, 124, 286,
295, 346

Sahu, Lakshminarayan, 103,223,416,734.
Sailana State, 557

Sait, Plaji Abdul. Sathar .i-liiji .Issaq,

339

Sakseiia, Mohanlal, 103, 273, 274
Sakti State, merger with Central

Provinces and Bcrar, 55.4
Salt duty, abolition of, 653, 663, 67.0,
676, 677

Samaota, .Devendra Nath. 103
Samanta, Satis Chandra, 102
Sambaipur, 577
Samthar State, 556

Sandur State, merger with .Madras,

555

Sangli State, merger with Bombay,

554

Sangri State, 555

Sankar, R., 105, 542

Sant . State, merger wnlh Bombay,

555

Santhanam, K., 102, 107, 153, ISO,
279, 305, 306, 330, 353, 423, 448,

486, 560, 561, 612, 613, 621, 625,

629, 632, 665, 734, 736, 739, 790,

792, 807, 837, 838

Sapru, Tej Bahadur, 8, 16, 18, 58, 51,
■52, 53, 56, 57, 502; attempt _ to
settle issue of minorities, 57; efforts
to end political deadlock, 51-3
Sapru Committee, 57-8; opinion on
fundamental .rights, 174-5;
recommendations of, 58, 59
Sarangarh State, merger with Central
Provinces and Berar, 554
Sai*eras, 768
Sariia State, 556
Sarkar, N. R., 656

Sarwate, V. S., 105, 308, 310, 6.37, 674
Sastri, V. S. Srinivasa, 16
Satish Chandra, 103, 492
Satyamurti, S., 467
Satyanarayana, Motiiri, 101
Saurashtra, 10!, 407, 442, 539, 542,
543, 545, 546, 556; CoiHlituent

Assembly 'in, 541; formatum rf, 533:
members of the Const! tueiil Assem-
bly from, 105

Savantvvadi State, merger with Bimibay,

554

Savanur State, merger with l>ornha.\,

554

Saxena, Shibban Lai. 103, 190, 223,
257, 293, 294, 295, 309, 313, 3i4. 331,

343, 346, 403, 438, 439, 455, 4"^, 500,

630, 637, 674, 675, 676, 677, 678, 679,

■ 681, 684, 686, 687, 695. 696, 787, 799.

813, .818, 82!'

Sayla State, -556

Scheduled Areas, 569-82, 64 L 762;
Advisory Committee, 578: i'entre Ui
direct units to draw up schemes for
welfare and to exercise comroi over
execution of such schemes, 763-4;
Commission to report m the adminis-
tration of, 765; creation of, 577:
..grants to units for ailiiiiiiisl ration 4)f,
653-4; proposed appointment of speck!

INDEX

889

Coniniissioii to enquire into plans of
development and conditions of, 763;
proposed provisions re, management
of 578-82; provisions re. 580;
responsibility for welfare and better-
ment of, 577; Tribal Councils for
administration of, 762
Scheduled Castes, 737, 738, 741, 747,

748, 749, 760, 762, 767, 772, 775, 777,
827; definition of, 765, 779; exclusion
from jurisdiction of Public Service
Commission of posts for, 737-8; need
for definition of, 780; President’s
power to specify, 779; proposal for
reservation of seats for, 770; proposal
re. inclusion of Sikh backward classes
among, 770; punishment for social
boycott, 749; question of reserva-
tion of posts for members of,
737; representation of, 748-9; reserva-
tions in appointments in States, 737;
reservation in services, 758, 776, 777;
reservation of .seats in Pailiament
and State Legislatures, 763, 764, 771,
774, 775-6, 757, 780; safeguards for,

749. 750; settlement commissions for,
749; special provisions for, 749-50;
suggested provisions for reservation
of seats, 750; total population in
Assam according to 1941 census, 774

Scheduled Castes Federation, 97
Scheduled Districts Act (1874), 569
Scheduled Tribes, 644., 737, 738, 765,
772, 775, 827; appointment of Com-
mission to report on administration
of Scheduled Areas and welfare of
Scheduled Tribes, 779; Centre to
direct units to draw up schemes for
welfare and to exercise control over
execution of such schemes, 763-4;
exclusion from jurisdiction of Public
Service Commission of posts for,
737-8; grants-in-aid to Stales for wel-
fare of Scheduled Tribes and adminis-
tralive development of tribal areas,
653-4, 680-1; listed in Eighth Schedule
lo Draft Constitution, 779; need for
definition of, 7S0; President’s power
to s|>ccify, 779; proposal for not
conceding right to contest general
seats negatived, 775; provisions re-
garding, 580; reservation in appoint-
ments in States, 737; reservation of
posts for members of, 737; reserva-
tion of seats for 771, 774, 776, 777;
reservation of seals in Parliament and
Slate Legislatures, 763, 764, 775-6,
7®; tribal areas, 569-89; welfare
scheiass for, 779
&ii’iister, George, 744
Scotlaad, 83, 483, 499; Secretary of’
Stale for, S3

Secretary of State for India, 406, 412,
592; see aim Amery, L, S.; Montagu,
I'dwin; Morley; Pethick-Lawrcnce
Sen, D. K,, 520

Sen,/. K., 104, 410 '

SeraikeUa State, merger with Bihar, 555
Servants of India Society, 97, 98
Services, 722, 806; All-India Services,
708-9, 711, 712, 714, 716, 719, 720,
725, 735; appointment of Special
Commission for recruitment to All-
India Services, 722; Centra!, 709; civil,
708, 712, 713, 718; claims of

minorities in, 764; communal represen-
tation in, 736-7; compensation to
persons engaged on contract or to be
sent away before agreed period, 719;
consequence of partition on, 711;
creation of services common to
Union and States, 719, 720; customs,
743; defence, 712, 718; draft

provisions relating to, 712, 713;
ecclesiastical, 709; Fundamental Rules
in respect of, 708; guarantee for
continuing subsisting service rights,
716-7; historical background, 708-11;
inclusion of provisions in the Con-
stitution regarding, 715; Indian
Administrative Service, 711, 715, 716,
717, 719, 720; Indian Agricultural
Service, 709; Indian Civil Service,
497, 708, 709, 710, 711, 715, 716,
725; Indian Educational ^^rvice, 709;
Indian Engineering Service, 709;
Indian Forest Service, 709; Indian
Medical Service (Civil), 709, 710;
Indian Police Service, 7{B, 710, 711,
715, 716, 717, 719, 720, 725; Indian
Veterinary Service, 709; Indknization
of Civil Service, 708; need fer pro-
tection from political influence, 724;
opinion of Ministry of Defence re.
safeguards, 717-S; payment of com-
pensation to European ofifleers wishing,
to retire prematurely or whom the
new Government did not wish to
keep, 716; power of President to
nmke rules re. defence services, 712;
pr^erential treatment to minorities,
777; proposals of Home Ministry
regarding, 714-7; protection against
dismissal, removal or reduction in
rank, 713-4, 719-20, 723; protection
to existing officers, 717, 719, 720-1;
provincial, 709; recommendation of
Union Constitution Committee re-
garding, 711; recruitment and condi-
tions of service, 713-4, 719: recruit-
ment of hill people, 762; regulations
for services to be made in consulta-
tion with Public Service Commissions,
735; report of the Joint Select Com-
mittee on Indian Constitutional
Reform on, 709-11; representation of
minorities, 743, 754, 756, 758:

representation of Sikhs and Muslims,.
751, 778; reservation for Anglo-Indians
751-2; reservation for Scheduled
Castes and Scheduled Tribes, 737,
748-9, 777; reservations for tribals

890

FRAMING OF INDIA’s CONSTITUTION

in, 752; safeguards for, 709; Secretary
of State’s Services, 711, 715, 716, 717,
720, 721; special representation of
Anglo-Indians in certain services and
protection of special grants to Anglo-
Indian schools, 778; subordinate, 709;
Union services, 709, 714
Seth, Damodar Swaroop, 103, 198, 223,
995 9^7 277 293 331
Shah,’ Ghimanlal Chakubhai, 105, 542,
693

Shah, K. T., 103, 107, 141, 144, 151,
190, 191, 192, 198, 205, 206, 212, 223,
225, 249, 250, 251, 254, 256, 266, 269,
270, 272, 278, 282, 283, 293, 324, 325,
332, 347, 348, 351, 352, 358, 359, 361,
362, 375, 376, 377, 378, 396, 403, 404,
416, 431, 435, 436, 437, 438, 439,
451-2, 492, 605, 687, 700, 753, 806,
819, 824

Shahi Jirga, 90, 573
Shahpura State, 557

Sharma, Balkrishna, 103, 207, 613, 787,
792

Sharma, Krishna Chandra, 103
Shastri, Algu Rai, 103, 223, 224
Shastri, Harihamath, 103.

Shastri, Hiralal, 105
Shillong, 776

Shiromani Akali Dal, 767, 768, 769
Shiva Rao, B., 102
Shivdasani, Ghanashyam J., 155
Shukla, Ravi Shanker, 109, 634, 690,
794

Shukla, Shambhu Nath, 106
Siddalingaiya, T., 104
Siddaveerappa, H., 104
Sidhva, R. K., 104, 153, 188, 191, 208,
215, 241, 278, 286, 307, 308, 673,
674, 681, 693, 694, 775
Sikhs, see Minorities
Sikiigars, 768, 770, 111
Simla, 21

Simon Commission, 121, 173, 174, 506,
514, 572, 725; idea of federal Union
for India, 593; Madras resolution
regarding, 12; on communal electo-
rate, 467; on Indian States, 511;
report on backward tracts, 569, 570-8
Simon, John, 18

Sind, 22, 57, 68, 69, 70, 89, 95, 96, 99,
127, 136, 747, 752; Muslim League
Minist^in, 63
Sindhu river, 142

Singapore, 27,^- 44; despatch of Indian
troops to,. 27.

Singh, Avdesh Pratap, 105
Singh, Baldev, 77, 103
Singh, Dale!, 105
Singh, Gianl Kartar, 768, 769
Singh, Guptanath, 103, "188, 189, 19L
287, 288

Singh, Harnam, 192, 258, 272, 750
Singh, Hukam, 103, 223, 379, 476. 477,
503, 504, 505, 775, 777, 779, 799
Singh, Jagannath Baksh, 103

Singh, Jaipal, 103, 214, 216, 217, 225,
278, 581, 5'82
Singh, Jogendra, 103
Singh, Kameshwara, Maharaja of
Darbhaoga, 103
Singh, Krishna, 105
Singh, Lai, 106
Singh, Phool, 103, 286, 738
Singh, R. U*, Dean of Faculty of Law,
Lucknow University, 542
Singh, Raglmraj, 643
Singh, Ramnarayan, 104, 342, 353
Singh, Ranbir, 103, 566
Singh, Ranjil, 105
Singh, Sochet, 105
Singh, Master Tara, 61-2
Singh, Ujjal, 194, 273, 750
Singhania, Padampat, 103
Singhji, Jaidev, 140
Singhji, Jaswant, 105
Singhji, Sardar, Raja of Khetri, 105, 140
Singhji, Maharaj Virbhadra, 520
Sinha, Anugrahanarayan, 103
Sinha, Dip Narain, 103
Sinha, Mahesh Prasad, 104
Sinha, Rameshwar Prasad, 104
Sinha, S. P„ 7

Sinha, Sachhidananda, 104, 143, 787

Sinha, Sarangdhar, 104

Sinha, Satyanarayan, 104

Sinha, Sri Krishna, 104

Sinn Fein Funds Act (Ireland), 327

Sinn Fein Organization, 327

Sirmiir State, 555

Sirohi State, partition between Bombay
and Rajasthan, 544-5, 555
Sitamau State, 557

Sitarama>wa, B. Pattabhi, 102, 158, 187,
189, 196, 265, 276, 307, 308, 447, 521,
560, 608
Sivaraj, N., 61
Sohawal State, 556
Sondhi, Bikramlal, 103
Sonepur State, merger with Orissa, 554
South Africa, 2, IL 126, 130, 140, 150,
152, 187, '339, 486, 565, '800,' 824;
Constitution of, 561; Supreme Court
of, 339

Soviet Union, 37, 49, 288, 565; Consti-
tution of, 83

Special committee of Congress on
language, recommendations of, 792
Special Committee of Constituent
Assembly, 162, 666, 787; constitution
of, 116; on adult franchise, 471; on
centrally administered areas. 564; on
functions of Governors during emer-
gency, 811; on power of Parliament
to legislate on State subjects, 625; on
Public Service Commissions, 728, 729
Special officer for linguistic minorities,
800-1: report to be laid before
Parliament, 801

Special officers to investigate and re-
port on minority safeguards, 778-9;
jurisdiction of, 779 ■

imm,

891 ^

Specific Relief Act, 306, 310
Spiti, 569

Sri Padmanablia Temple (Travancore).

548 . ^ V

Sri Prakasa, 207
Srivastava, Jwala Prasad, 103
Standstill agreement with Indian States,
530, 531

State of Nagaland Act (1962), 147,

590

States Committee of Constituent Assem-

ly, 98-9

States Negotiating Committee, see

Chamber of Princes
Statute of Westminster, 18, 29, 30, 31
Stihveii, General, 50
Subba Rao, Kallur, 102
Siibbarayan, F., 102, 387, 447, 824 '

Subordinate judiciary, 506-10, 714; ap-
pointment of magistrates, 507; ap-
pointment of judges of, 507, 508, 509;
High Courts’ control over, 508, 509;
provisions relating to, 509-10
Subramaniam, C, 102, 189, 191, 702
Subramaniaiii, V., 102
Suket State, 555
Sultan Ahmad, 520
Sundaram, V. S., 656
Sunder Lall, 103

Supreme Court, 200, 217, 222, 234, 236,
237, 238, 241, 284, 292, 293, 303, 304,
315, 387, 411, 414, 415, 484, 497, 505,
599, 629, 638, 639, 648, 729, 732, 739,
753, 821, 826, 831, 832; ad hoc com-
mittee on, 306, 485, 486; administra-
tive expenses to be charged expen-
diture, 489; advisory jurisdiction of,

484, 489; advisory reference to, 490;
ancillary powers of, 485; appellate
jurisdiction of, 484, 493-4; appoint-
ment of ad hoc judges, 494, 496; ap-
pointment of jurist as Judge of, 492;
appointment, tenure and retirement
benefits of judges of, 484-5, 487-8,
490-1, 492; authority to issue prero-
gative writs, 302; B. N. Rau on, 487;
Chief Justice of, 355, 357; Chief
Justice to appoint arbitrator in res-
pect of extra costs incurred bv State
in exercise of duties in relation to
federal subjects. 643; Constitution
bench of, 489-90; enforcement of
fundamental rights by, 483-4; Frank-
furter on, 487; historical background,
480-1: language of proceedings in,
793: Nehru Report on, 480; powers
and jurisdiction of, 481, 483-4, 488,
489, 490. 493: provisions' regarding,
483-95; qualifications of judges of,

485. 496; question of acceptance of
office after retirement^ by judges of,
492; recommendations in White Paper,
480. 481; removal of Judges of, 486;
Special Committee on, 483-5; sug-
gested advisory board for appoint-
ment of judges to, 491; transitional

provisions regarding, 487, 490, 495;
Union Constitution Committee on,
486; writ jurisdiction of, 304-5, 307,
308, 310

Surat Congress session, 2

Surgana State, merger with Bombay,

Surguja State, merger with Central
Provinces and Berar, 554
Sutlej Valley Canal Project, agreement
with Bahawalpur and Bikaner, 527
Swaraj Constitution for India, 12
Swaraj Party, 9, 11, 467
Swiss Constitution, 341
Switzerland, 64, 350, 596, 800, 824
Sylhet, district in Assam, 90, 99, 127,
136, 137, 774

Tajamul Husain, 104, 188, 196, 208,
265, 266, 308, 309, 370, 632, 773
Talchar State, merger with Orissa,
554

Talukdars, 297

Tandon, Purshotamdas, 103, 114, 783,
792, 797, 798, 799
Taraon State, 556

Tehri-Garhwal State, merger with
United Provinces, 555
Tek Chand, Bakshi, 103, 152, 214, 215,
241

Thakkar, Amritlal Vithaldas, 105, 587,
779

Thakkar Sub -Committee, 579-80
Thakur Chhedilal, 104
Thakur, P. R., 461
Tharoch State, 555
Tibet, 586

Tigiria State, merger with Orissa, 557
Tilak, Bal Gangadhar, 1, 3
Tirap Frontier Tract, 590
Tiwari, Kamalapati, 103
Tiv/ari, Ram Sahai, 106
Tiwary, Venkatesh Narayan, 103
Tonk State, 557
Tpri-Fatehpur State, 556
Trade and commerce; Central Minis-
tries’ suggestions regarding, 702;
draft articles relating to, 702-4; free-
dom of, 699, 701, 702, 703, 705,
706; Fundamentai Rights Sub-Com-
mittee on, 699; historical background
of freedom of, 699; Inter-State, 699,
701, 702, 703-4; inter-State commis-
sion to adjudicate disputes, 702; inter-
state customs and export duties,
705; power of President to terminate
or modify any agreement re. tax or
duty on inter-State trade or com-
merce, 705; prohibition of discrimi-
nation in, 703; restrictions on, 699,
700, 701-2, 703, 704; West Bengal
Legislative Assembly on provisions
regarding, 702, ■ "■■■

Trade Union Congress, 51

892

FRAMING OF INOIA'S CONSTITUTION

Transfer of power, 708, 709, 716, 745
Travancore State, 99, 520, 542, 557;
Ruler of, 133

Travancore-Cochin, United State of,
101, 300, 442, 539, 543, 545, 547,
551, 557, 694; Constituent Assembly
in, 541; formation of, 533; members
of Constituent Assembly from, 105;
provision for payment of Devmwom
fund, 548.

Tribal Advisory Council, 579, 582, 762;

functions of, 577-80; role of, 580-1
Tribal areas, 747; constitutional posi-
tion of, 572; Government policy
towards, 577; in Indian constitutional
structure, 137; power of Governor of
Assam regarding, 401
Tribal areas and excluded and partially
excluded areas, 761; Cabinet Mis-
sion’s plan regarding, 68; recommen-
dations of Sub-Committee on, 401-2
Tribal people, 762, 764; safeguards for,
752

Tripatbi, Hira Vallabha, 103
Tripathi, Kisbori Moban, 105
Tripatbi, Visbwambbar Dayal, 103, 125,
286

Tripura State, 100, 147, 539, 545, 556,
567; member of Constituent Assembly
from, 106

Truman, H., President of U.S.A., 428;

B. N. Rau’s discussion with, 428-9
Tuensang district (Assam), 590, 591
Turkey, Peace Treaty with, 6; Sultan of,
see Khalifa

Tyagi, Mahavir, 103, 131, 189, 195, 242,
273, 274, 331, 434, 630, 636, 676,
696, 830, 831

Udaipur State (Rajasthan), 99,526,557
Udaipur State, merger with Central
Provinces and Berar, 554
Union Assembly, see Legislature,
Centra!

Union Constitution Committee, 112,
113, 115, 116, 127, 135-6, 142, 153,
154, 155, 156, 162, 306, 337, 339,

340, 343, 344, 346, 348, 349, 350,

353, 356, 3$0, 363, 366, 367, 389,

398, 399, 409, 414, 420, 424, 425,

432, 433, 434, 478, 483, 485, 487,

501, 560, 605, 614, 641, 642, 650,

651; 711, 712, 726, 785, 787, 806,

807, 826, 827; ad hoc Committee on
Supreme Court, 306; Chairman of,
see Nehru, Jawaharlal; joint meeting
with Provincial Constitution Commit-
tee, 386. 606-9; on administrative
relations ^ between Centre and States,
642; on . . all-India election tribunal,
,448; on Centre’s power Jo regulate
■ broadcasting, J 10; on Chief Commis-
sioners’ .Provinces, 559-60; .on Con-
., current Legislative List, 609T0; on

Council of Ministers, 372-3; on distri-
bution of legislative powers between
Federation .and Units, 607; on Elec-
tion Commission, 463; on emergency
powers of President, 804-5; on Fede-
ral, Provincial and Concurrent Lists
and distribution of executive autho-
rity, 363; on finance and borrowing
powers, 651, 652; on impeachment
of President, 354; on Indian States,
534-5; on office of Vice-President,
357; on Ordinances, 475; on power
of pardon, 369; on qualifications for
eligibility for election as President,
350; on State List, 609-10; on super-
intendence, direction and contro.l of
elections, 463; on Supre.me Court,
486; on time of holding election to
fill vacancy in office of President,
355; recommendation, of joint sub-
committee re. Indian States, 607, 609;
report on future Constitution of India,
()07; report of Parliamentary system
of government, 422, 423; sub-com-
mittee on representation in Council
of States, 422; tentative decisions
regarding future Constitution of India,
607

Union Legislature, see Legislatare,
Central; Parliament of India

Union List, 539, 714

Union Public Service Commission, 415

Union Powers Committee, 109-10, 113,
114, 116, 162, 501, 525, 535, 597, 599,
606, 612, 613, 614, 625-6, 641, 642,
644, 650, 652, 658, 664, 665, 805;
acceptance of sub-committee’s sugges-
tions re. certain provisions on Indian
States, 601; appoints sub-committee
to re-examine tentative conclusions on
respective powers of Centre and
States, 601; first report of, 603, 604,
606, 609; on Centre’s power of taxa-
tion, 612; on Centre-State relation-
ship, 600-3, 610-4; on communications,
602; on defence, 602; on elections
and Election Commission, 463; on
extension of Federal List to Indian
States, 610; on foreign affairs. 602; on
planning, 603, on powers Union,
601-2, 603, 651; on Union’s power to
raise finances, 602-3; provisional con-
clusions re, respective powers of
Centre and States, 601; recommenda-
tion re. assignment or sharing of
proceeds of taxes on basis tri be
dete,rmined by Centre. 651; re-exami-
nation of its tentative conclusions
re. respective powers of Centre and
States, 601; second report of, 607 ;
sub-committee’s suggestions re. Indian
States, 601, 603; to redefme respective
legislative spheres of Federation atui
.units in light of political changes,
607; to re-examine Centre-Stale rela-
tions . re. legislative and executive

INBBX

,893

powers consequent on partition, 605;
to report on, scope of Union subjects
under Cabinet Mission’s plan, 597;
various suggestions by Departments
of Government of India for assign-
ment of certain items to one or other
of three lists, 608

Union Territories, 406, 568; historical
background, 558
Unionist Party, 21, 22, 97
United Kingdom, see Great Britain
United Nations, 37, 38, 43, 47, 48, 62,
64, 138, 141, 171, 552; India’s

membership of, 137-8
United Provinces, 6, 21, 22, 23, 24, 25,
26 , 68 , 88 , 94, 96, 100, 137, 234, 284,
294, 297, 456, 496, 543, 544, 561,
573, 576, 578, 579, 656, 657, 689,
691, 751, 783, 794; members of
Constituent Assembly from, 102-3;
merger of Rampur with, 545; merger
of States with, 555; Premier of, see
Pant, Govind Ballabli; second chamber
for, 451; see also Uttar Pradesh
United Provinces Legislature, 22, 752
United Provinces States, 101; members
of Constituent Assembly from, 105,
merger with United Provinces, 545,
555

United States Constitution, 180, 181,
182, 232, 250, 253, 283, 296. 301, 308,
325, 341, 352, 353, 362, 42^ 429
United States Inter-State Commission,
704

United States of America, 37, 43, 46,
49, 120, 142, 235, 237, 254, 301, 326,
340, 341, 342, 348, '349, 353, 384,
386, 487, 560, 562, 596, 629, 819,
821, 824, 827; election of President
and Vice-President, 357; interest in
Indian affairs, 48; power of Congress
re. legislation in exercise of war-
power, 596; Senate of, 353; visit of
B. N. Rau to study working of
Constitution, 428

United States Supreme Court, 220, 221,
232, 237, 253, 596; on Gitlow vs New
York, 221; practice re. advisory
reference, 490

Untouchability, 741, 760, 771-2;

abolition of, 260, 750, 754
Upadhyaya, Ramchandra, 105
UnrajpVamiikhs, 351

Uttar Pradesh, 146, 147, 543, 578, 789;
merger of Rampur with, 567; second
chamber in, 457; , .see also United
Provinces

Vadia State, 556

Vaidya, Vinayakrao Balshankar, 105
Vala' State, 556
Varadachariar, S., 152, 483
Varma, Manikya Lai, 105
Veerabahu, M. C., 102

Veiayudapani, P. M,, 102
Velayudhan, Mrs. Dakshayani, 101, 205
Venkatarao, Kala, 10!

Vice-President of India, 343, 350, 356-9;
election of, 258-9, 381; functions
of, 357, 358, 359; privileges, emolu-
ments and allowances of, 358, proce-
dure for removal of, 358, 359, 437-8;
qualifications for, 358; to act tempo-
rarily as President in a vacancy, 356;
to be Chairman of Council of States,
427; to discharge functions of ■ Presi-^
dent on certain occasions, 358
Viceroy, see Chelmsford; Irwin; Linlith-
gow; Minto; Mountbatten; Reading;
Wavell; Wiilingdon

Victoria, Queen Empress, Proclamation
of, 170-1
Vidarbha, 407
Vidya Mandir Scheme, 743
Vijayanagar State, merger with Bombay,
555

Vijayavargiya, Gopikrishna, 105
Vijayavargiya, Radhavallabh, 105
Vindhya Pradesh, 101, 442, 539, 542,
545, 547, 556, 567-8; constitution of,
533; converted into a Chief Commis-
sioner’s Province, 546; member of
the Constituent Assembly from,
105-6

Virpur State, 556
Vyas, .Tainarain, 105

Wadhwan State, 556
Wadi Jagir State, merger with Bombay,
554

Wankaner State, 556
War Advisory Council, setting up of, 33
War Cabinet, 7, 37, 39; assent to Cripps
Proposals, 35
War Department, 39
Wardha, 44, 48; Hindustani Frachar
Sabha started at, 782; meeting of
Congress Working Committee at, 45
Washington, 43, 48, 187, 560 to 565
Water disputes, Parliament to provide
by law for adjudication of inter-State,
648; provisions for settlement of inter-
state, 647-8

Wavell, Viceroy of India, 35, 56;
58, 59, 60, 61, 62, 63, 70, 71,
72, 73, 74, 75, 76, 77, 81; assurance
to Nehru re. Muslim League’s ac-
ceptance of Cabinet Mission’s plan,
74-5; broadcast talk on political re-
forms in India, 61, 62; efforts to
persuade Congress to accept British
Government’s interpretation of Cabi-
net Mission’s plan, 75; failure of his
efforts to end political deadlock, 63;
negotiations with Jinnah, 74; plan for
constitutional reforms, 59, 60, 61, 62;
policy towards Cripps offer, 62
Weimar Copstitiition, 180, 321

894

FRAMING OF INDIA’S CONSTITUTION

West Bengal, 99, 100, 137, 146, 147,
276, 455, 544, 656, 657, 660, 668,
678, 684, 689, 691, 760, 766, 767;

fresh elections to Constituent As-
sembly, 99; members of Constituent
Assembly from, 102; merger of Cooch
Behar with, 533, 546, 555, 567;

minority problem in, 768; Premier
of, 635; second chamber for, 451,
457; suggestion re. entries in State
List, 633

West Bengal Legislative Assembly, 143,
159, 667; on freedom of trade and
commerce, 702

West Bengal, Municipal Association,
667

Westminster, 8

^West Pakistan, refugees from, 295
West Punjab, 89, 91, 127, 136, 163
White Paper, on India, 19-20, 122, 725;
recommendation re. Supreme Court
and Federal Court, 480
White Paper on Indian States, 533
White slave traffic, 254
Willingdon, Viceroy of India, 19
Wilson, President of U.S.A,, 5
Wilson, TJ.M., 102

World War I (1914-18), 3, 19, 17L 319,
708,724

World War II (1939-45), 27, 30, 41, 45,
171, 350, 366, 517, 595, 624, 657, 744,
838; Japan’s entry into, 41

Writ of certiorari, 301

Writ of habeas corpus, 241, 244, 245,

301

Writ of mandamus, 301
Writ of prohibition, 301
Writ of quo warranto, 301, 304
Writs, 302; power of courts to issue,
308; power of High Courts to issue,
302; prerogative writs and writs in
action, 310; suspension of, during
emergency, 304, 305
Writs, prerogative, 302, 303, 504-5

Yadav, Kamaleshwari Prasad, .103
Yanam, 147 .

Yogam, for administration of Sri
Padmaiiabha Temple, 548
Yusuf All, A., 21

Zafrull.\h Khan, Muhammad, 21
Zaidi, B. H., 105, 140, 826
Zamindari, 234, 293, 294, 295; abolition
of, 284, 285, 286, 289, 291, 292, 294,
295, 298

Zamindars, 255, 297

•CIPN-Sd-I IIPA/67-14-1 1-68-5,000,

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